Buckbee v. P. Hohenadel, Jr., Co.

• Decision Date: 05 January 1915
• Docket Number: 2142.
• Citation: 224 F. 14
• Parties: BUCKBEE v. P. HOHENADEL, JR., CO.
• Court: U.S. Court of Appeals — Seventh Circuit

224 F. 14

BUCKBEE v. P. HOHENADEL, JR., CO.

No. 2142.

United States Court of Appeals, Seventh Circuit.

January 5, 1915

Rehearing Denied May 25, 1915.

The plaintiff in error, Buckbee, was defendant below in the suit of P. Hohenadel, Jr., Company, a Wisconsin corporation, as plaintiff, for recovery of damages upon contract. On trial of the issues to a jury verdict was directed by the trial court and so rendered against the defendant for $12,921.40 damages assessed in favor of the plaintiff, and this writ of error is brought for reversal of the judgment awarded thereupon. The material questions raised by the assignments of error are stated in the ensuing opinion, and the issues under the pleadings are well summarized in the brief for defendant in error, as follows:

'The declaration set out in haec verba in the second count two contracts, the first of October 17, 1903, and the second of October 23, 1903. The first contract was in the form of an order and acceptance for 300 pounds of 'Chicago Pickle' cucumber seed at the price of 70 cents per pound for future delivery, f.o.b. Rockford, net cash, 30 days, 1 1/2 per cent. discount for cash in 10 days. The second contract was for 3,500 pounds of cucumber seed 'Improved Chicago Pickling,' upon the same terms. The declaration then alleged that the plaintiff, at the time of making such contracts, was acting as the agent for P. Hohenadel, Jr., but that the fact of such agency was not disclosed to defendant at the time of making either of said contracts, and further alleged that the cucumber seed mentioned in the contracts as 'Chicago Pickle' and 'Improved Chicago Pickling' were known as and were one and the same, and that the second contract was an extension and further order under the first contract, and said two contracts were treated by the plaintiff and defendant as one order, and the deliveries thereunder were made as if under one and the same contract.

'The declaration then alleged that 2,500 pounds of cucumber seed were delivered under the said contracts on March 4, 1904, and 1,300 pounds on March 9, 1904, and the plaintiff thereupon paid the defendant the purchase price of the said cucumber seed, and that neither at the time of the purchase nor at the time of delivery could the plaintiff, by an examination or inspection of said cucumber seed, tell or ascertain whether said cucumber seed were of the variety or kind known as 'Chicago Pickle' or 'Improved Chicago Pickling,' and that such variety of seed was specially adapted for producing a high grade of cucumbers for pickling, and that the kind of cucumber seed could not be ascertained until the seed were planted and cucumbers grown therefrom; that the defendant did not keep and perform its said contracts and warranties as to the quality of said seed, and the seed delivered were not 'Chicago Pickle' or 'Improved Chicago Pickling' cucumber seed, but said seed were then and there of an inferior variety of cucumber seed, that would not produce, when planted, cucumbers specially adapted to the production of a high grade of cucumbers for pickles; that both P. Hohenadel, Jr., and the plaintiff were engaged in the business of selling cucumber seed, and in the business of planting and growing cucumbers for pickling, and in pickling the same, as defendant then and there well knew, and it was then and there a custom and usage well known to the defendant for the purchasers of seed, in order to sell said seed and obtain a crop therefrom, to contract to take all of the cucumbers produced from such seed, and that, relying upon the warranties aforesaid, P. Hohenadel, Jr., sold said cucumber seed to P. A. marsh under a like warranty; that Marsh sold said cucumber seed to others, including numerous producers of cucumbers, and at the time of such sale contracted with some of the producers to purchase from them the whole product of said seed; and that, in consequence of the plaintiff's breach of warranty, the said Marsh was compelled to take the product of said cucumber seed, and, in consequence, suffered great damage, and said P. Hohenadel, Jr., incurred large liability and suffered damage in the sum of $30,000. To this declaration the defendant pleaded the general issue, non assumpsit, 'that he did not promise in the manner and form as the plaintiff has * * * in its additional counts * * * complained."

James G. Elsdon, of Chicago, Ill., for plaintiff in error.

John M. Zane, of Chicago, Ill., for defendant in error.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

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

The judgment against the defendant below, plaintiff in error Buckbee, arose under his contracts for sale and delivery to the plaintiff corporation, P. Hohenadel, Jr., Company, of cucumber seed of specified variety, and the verdict in favor of the plaintiff (directed by the trial court) awards recovery pursuant to two propositions, in substance: (1) That the evidence establishes delivery of a different variety of seed, not adapted to the purpose contemplated by the contract; and (2) that damages are proven and recoverable for the difference in market value between the crops produced from the seed so delivered and such crops as the variety of seed specified in the contracts would have produced under like conditions. Thus, in one or another form of presentation, the tenability of both of these propositions requires determination under the assignments of error. Other material questions arise upon rulings against the reception of testimony offered on behalf of the defendant. For consideration, however, of both propositions above stated, involving substantially the merits of the issues under the pleadings, this question arises for settlement at the threshold of inquiries under the assignments, namely: To what extent and for what tests, is the evidence reviewable thereupon?

1. The verdict against the defendant was directed by the court, and the general rule in such case, both of reviewability of the entire evidence and of the tests to be applied thereto, is unquestionable. But in the present record both the bill of exceptions and assignments of error disclose motions on behalf of the defendant, described in assignments 1, 2, 3, and 4 as denied by the court, as follows:

(1) 'To direct a verdict in favor of the defendant, at the conclusion of the plaintiff's case;' (2) 'to strike plaintiff's evidence and to direct a verdict in favor of the defendant at the conclusion of all the evidence;' (3) 'to direct a verdict for the sum of $300 against the defendant at the conclusion of plaintiff's case;' (4) 'to direct a verdict for the sum of $300 against the defendant at the conclusion of all the evidence.'

It is manifest, therefore, that the defendant expressly submitted and 'affirmed that there was no disputed question of fact which could operate to deflect or control the question of law,' and that the rule stated and upheld in Beuttell v. Magone, 157 U.S. 154, 157, 15 Sup.Ct. 566, 567 (39 L.Ed. 654), is applicable and controlling for answer to the foregoing inquiry, namely:

'This was necessarily a request that the court find the facts, and the parties are therefore concluded by the finding made by the court, upon which the resulting instruction of law was given. The facts having been thus submitted to the court, we are limited in reviewing its action to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof.'

We are not advised of any decision of the Supreme Court which tends to disturb this ruling, and it appears to have been uniformly adopted and enforced by the Circuit Courts of Appeals in the various circuits whenever the effect of such motions has arisen. The following precedents with their citations are deemed sufficient for mention: Chrystie v. Foster, 61 F. 551, 9 C.C.A. 606; Magone v. Origet, 70 F. 778, 17 C.C.A. 363; United States v. Bishop, 125 F. 181, 60 C.C.A. 123; Phenix Ins. Co. v. Kerr, 129 F. 723, 64 C.C.A. 251, 66 L.R.A. 569; Love v. Scatcherd, 136 F. 1, 77 C.C.A. 1; Bradley Timber Co. v. White, 121 F. 779, 58 C.C.A. 55; Century Throwing Co. v. Muller, 197 F. 252, 257, 116 C.C.A. 614. Both of the above-mentioned requests for direction of verdict 'at the conclusion of all the evidence' were necessarily predicated on the defendant's submission and assurance that the evidence raised no issue of fact for determination within the exclusive province of the jury, that conclusions of law were alone involved therein, and that the ruling of the court accordingly was directly involved on behalf of the defendant below. On such state of the record, not only administration of justice, but the entire line of authorities referred to, concur in denial of his right, as plaintiff in error, to have that submission reopened for review of the testimony, except to ascertain whether evidence appears in support of the ultimate conclusions of law thereupon in favor of plaintiff below.

We do not understand, however, that these motions affect in any manner the assignments of error for rejection of testimony offered on behalf of the defendant in the course of the trial, and the contentions in support of the judgment, that errors of law therein (if committed) were either waived or otherwise cured by such motions, must be overruled. The submission above described involved alone the effect of the testimony which was received and entered into denial of the motions, so that it can neither embrace the offers of rejected testimony, nor waive exceptions duly preserved to the rulings of law thereupon.

2. Whatever of conflict appears in the testimony, therefore, in reference to the first proposition above mentioned as one of fact which was upheld by the trial court...