American Trust & Savings Bank v. Zeigler Coal Co.

• Decision Date: 06 October 1908
• Docket Number: 1,452.,1,451
• Parties: AMERICAN TRUST & SAVINGS BANK v. ZEIGLER COAL CO. (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

165 F. 34

AMERICAN TRUST & SAVINGS BANK v. ZEIGLER COAL CO. (two cases).

Nos. 1,451, 1,452.

United States Court of Appeals, Seventh Circuit.

October 6, 1908

The plaintiff in error, as trustee in bankruptcy of Scott Coal &amp Coke Company (substitute for the bankrupt), brings for review under these writs two several judgments, entered in the Circuit Court against such bankrupt corporation. In No 1,451, Scott Coal & Coke Company sued Zeigler Coal Company defendant in error, in assumpsit to recover damages for alleged breach of contracts for delivery of coal, set out in various counts of the declaration, as amended. Issues were joined, and upon submission to a jury the trial court directed a verdict in favor of the defendant, resulting in the judgment complained of. No. 1,452 exhibits a suit by Zeigler Coal Company (commenced prior to the above-mentioned action) against Scott Coal & Coke Company to recover for coal actually delivered under contract, with plea of general issue and trial to a jury, wherein the court directed a verdict against the Scott Coal & Coke Company, assessing damages at $3,927.68, and judgment was recovered accordingly. These actions were consolidated, under orders entered by the trial court, and proceeded to trial before a jury, with the issues in each treated as independent issues thereupon. The questions arising under each writ of error and such facts as are involved therein are stated in the opinion.

Charles E. Pope, for plaintiff in error.

Horace Kent Tenney, for defendant in error.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge (after stating the facts as above).

The reviewable questions which arise under either of these writs of error are free from complication, as we believe, either in law or fact, notwithstanding the extent of testimony (appearing in the transcript of record in No. 1,451) and numerous propositions, both of law and fact, discussed by counsel in the oral argument and submitted, respectively, in printed briefs. In each writ are involved the same agreements upon terms for deliveries of coal from the mines of Zeigler Coal Company (hereinafter referred to as the 'Zeigler Company') at Zeigler, Ill., on shipping orders sent by Scott Coal & Coke Company (hereinafter mentioned as the 'Scott Company') for consignment to various customers of the last-named corporation. The contracts in litigation were made in 1905, at various dates, for purchase and shipment by rail of two general classes of coal mined at Zeigler-- one designated as 'prepared coal' and the other as 'screenings'-- for periodical deliveries as stated up to March 31, 1906. Provisions for the amount of prepared coal to be shipped on orders, for proportional monthly shipments, and for the price of each grade are contained in a series of letters in evidence-- commencing with letters dated, respectively, June 6, 7, and 8, and renewed and confirmed in letter of the Zeigler Company, dated November 2, 1905-- and such correspondence clearly establishes, as we believe, mutual understanding and obligation in each of these terms, with 25,000 tons of prepared coal as the aggregate amount to be ordered and delivered under the entire contract. The agreements for screenings were several-- oral in part, but mainly confirmed by letters-- and the amounts, price, and terms of shipment are specified and uncontroverted.

Under the several contracts the Zeigler Company made shipments of prepared coal and screenings, commencing in June, 1905, and continuing up to January 27, 1906, when it refused to make further deliveries, upon the alleged ground of failure on the part of the Scott Company to pay for prior shipments; and the facts are undisputed in reference to the amounts shipped and actual payments made.

On the other hand, failures on the part of the Zeigler Company to make shipments at the times and in the quantities intended by the contracts appear from the testimony. Controversy thus arose between the contracting parties whether one or the other was in default under the terms of the several contracts, and each brought suit against the other, in assumpsit, to enforce its contentions. These actions were consolidated, pursuant to section 921 Rev. St. U.S. (U.S. Comp. St. 1901, p. 685), on motion of the Scott Company, and trial of the issues to a jury resulted in a verdict in favor of the Zeigler Company in each cause, as directed by the trial court, and several judgments accordingly.

The method of trial so adopted, with the two cases treated as separate alleged causes of action, requiring separate verdicts and judgments, conforms to the purpose of the statute referred to, as upheld in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 293, 12 Sup.Ct. 909, 36 L.Ed. 706, and recognized in American Window Glass Co. v. Noe (decided by this court during the current term) 158 F. 777, 86 C.C.A. 133. Several writs of error were needful, therefore, for review of such judgments as presented here in cases Nos. 1,451 and 1,452; but the questions arising under each are independent, and no ground appears for the preliminary motions submitted on behalf of plaintiff in error to consolidate writs or records for the purposes of review, although heard together and so embraced in this opinion. The contentions for reversal in each case hinge upon alleged error of the trial court in directing verdict in favor of the defendant in error, and they are determined in the cases severally as above entitled.

1. The issues in No. 1,451, suit of the Scott Company against the Zeigler Company, under the several counts of the declaration and general plea, are: (1) Whether the contracts were made between the parties for purchase and delivery of coal as averred; (2) whether the Zeigler Company was guilty of breach thereof; and, in such event, (3) what damages were incurred. As above stated, the making of the contracts is established by uncontroverted evidence, and no uncertainty appears in the terms agreed upon, unless it arises out of failure to specify which one of the parties was to provide the cars for shipment of the coal from the mines at Zeigler to destination as ordered. So all facts are settled in the first-mentioned issue, leaving only the meaning of the contracts, in reference to furnishing the cars, or the fact of agreement thereupon, to be ascertained upon the issue of breach.

The primary facts averred as breaches of the several contracts being undisputed-- namely, repeated failures on the part of the Zeigler Company to fill the orders duly given for shipments of coal under such contracts within the times or in amounts stipulated therefor, both before and after the renewal contract made November 2, 1905-- the contentions in support of the judgment are, substantially, that the Zeigler Company was not in default in such nonperformance, for these alleged causes: (a) That cars were not provided by the Scott Company to make the required shipments; (b) that failures to make shipments were due to inability on the part of the Zeigler Company to obtain cars therefor in any view of its obligations in that behalf; (c) that the Scott Company is chargeable for delay or breach in cancellations and changes of shipping orders; and (d) that the Scott Company was in default for nonpayment of invoices, when the Zeigler Company, on January 27, 1906, refused to make further deliveries. The first two contentions only-- in reference to car supply-- appear to have been applied by the trial court for direction of the verdict in favor of the Zeigler Company, and we are not impressed with either of the others as meriting extended discussion. They are dismissed, therefore, with remark, in passing: While delay caused by the purchaser, in cancellation or change in orders, may well defeat recovery for such delay, no sufficient evidence to that end appears in the record to take the case from the jury. The assumed default of the Scott Company refers to payments withheld for December and January shipments of coal, for which it tendered offset of damages for delays claimed in shipments; but such offers were promptly made, in our view of the testimony, and any question of default...