Connell Bros. Co. v. H. Diederichsen & Co.

• Citation: 213 F. 737
• Decision Date: 18 May 1914
• Docket Number: 2361.
• Parties: CONNELL BROS. CO. v. H. DIEDERICHSEN & CO. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

213 F. 737

CONNELL BROS. CO. v. H. DIEDERICHSEN & CO. ^[1]

No. 2361.

United States Court of Appeals, Ninth Circuit.

May 18, 1914

Kerr &amp McCord and C. H. Hanford, all of Seattle, Wash., and Fleming & Davies, of Shanghai, China, for plaintiff in error.

George H. Whipple, Allen L. Chickering, and Chickering & Gregory all of San Francisco, Cal., and Jernigan & Fessenden, of Shanghai, China, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and DIETRICH, District Judge.

DIETRICH District Judge.

This case comes here by writ of error from the United States Court for China, for the review of a judgment against the plaintiff in error, hereinafter referred to as the defendant, for the amount of $3,830.89 and costs. The pleadings are the petition or complaint and the defendant's answer thereto. The petition alleges that the plaintiff, H. Diederichsen & Co. is a German firm or company, doing business at Chefoo and Shanghai, China, and elsewhere; that on or about the 17th day of October, 1911, it entered into a written contract, whereby it purchased from the defendant 80,000 sacks of flour, to be consigned to plaintiff at Chefoo, China, and to be shipped from Seattle, Tacoma, Portland, San Francisco, or Vancouver, 'by a steamer sailing from any of said ports during the month of February, 1912. ' It is further alleged that the flour was not shipped until about the 14th day of March, and that, upon the arrival of the cargo at Chefoo, the plaintiff accepted it under protest only for the purpose of mitigating the loss which might follow a refusal to receive it. The prayer is for damages alleged to have been sustained by reason of the delay. In its answer the defendant, for want of sufficient knowledge or information, denies that the plaintiff is a German firm or company. It expressly admits 'that on or about the 17th day of October, 1911, at Chefoo, China, the plaintiffs and the defendant entered into a written agreement, whereby the plaintiffs purchased from the defendant 80,000 sacks of flour. ' And it further admits that by the terms of the contract it agreed to ship the flour 'by a steamer sailing from any of said ports (the ports named in the complaint) during the month of February, 1912, and consigned to the plaintiffs at Chefoo, China. ' But it alleges that its obligation in this respect was, by the contract, made 'contingent upon strikes, accidents, and other delays unavoidable or beyond the control of the defendant. ' It further alleges that it chartered the steamship Harpagus for the shipment of the cargo, and that the flour was delivered to Messrs. Dodwell & Co., agents for the Harpagus, upon the wharf at Tacoma, Wash., not later than the 28th day of February, 1912, and that bills of lading covering the shipment were issued to the defendant by such agents prior to or on February 28, 1912. It also denies that the plaintiff sustained any damage.

There was a preliminary hearing for the determination of the question as to whether or not there had been any breach of the contract, and, the decision of the court being favorable to the plaintiff, a subsequent trial was had for the determination of the amount of damages to be awarded; both trials were without a jury. This mode of procedure was in accordance with a written stipulation entered into by the parties and filed in the cause, and, inasmuch as this stipulation is relied upon as a waiver of certain objections, we quote the substantive parts thereof in full:

'(1) That the hearing and trial of said action be confined in the first instance as to the issue whether or not the defendant herein has committed a breach of the contract mentioned in the pleadings herein as to shipment or has committed such a breach of the contract as to shipment as will render it liable in damages to the plaintiffs if damages have in fact been sustained by the plaintiffs. And that if said court should hold, find, and decide that the defendant had not committed a breach of said contract, or such a breach of the same as would render it liable in damages to the plaintiffs, then that such judgment be made final.

'(2) That, in event the court should hold, find, and decide that the defendant had committed such a breach of the said contract as would render it liable if damages had in fact been sustained by the plaintiffs herein by reason thereof, then the above-entitled matter shall be again set for hearing on the issue of damages, and that evidence in relation thereto, both on behalf of the plaintiffs and on behalf of the defendant, may be offered and introduced by the respective parties, and, after a full hearing and argument thereon, the final judgment and finding of the court be made and entered herein.'

The first proposition argued involves the question of the identification of the plaintiff or its capacity to sue. It is alleged to be a 'German firm or company.' In the answer, as we have seen, this averment is denied for want of sufficient knowledge or information. The question was not raised in the lower court, and is not covered by any assignment of error; it is suggested in the brief for the first time. Clearly, if it involves nothing more than absence of proof, we cannot consider it, for, even were there a sufficient assignment, proof upon all but two general issues, which do not include this question, was waived by the written stipulation. It is argued, however, that the point involves something more than a want of proof, and that, it appearing upon the face of the pleadings that the plaintiff is without legal entity, we should take cognizance of the alleged error, even though not assigned. The suggestion that the question is jurisdictional is thought to be without merit, and, that being the case, the objection comes entirely too late. Bort v. McCutcheon, 187 F. 798, 109 C.C.A. 558. In its answer the defendant expressly admitted making the contract with the 'plaintiffs,' and, by waiving proof as to the character of H. Diederichsen & Co., it admitted that it is a German firm or company. If it desired an averment of the names of the persons, other than H. Diederichsen, who compose such firm or company, the objection should have been made by demurrer, on the ground of defect of parties plaintiff or want of capacity to sue. A. M. Gilman & Co. v. Cosgrove, 22 Cal. 356.

It is next argued that the memorandum signed by the defendant upon October 17, 1911, does not constitute the contract or agreement between the parties. The contention is directly in the face of the express admissions and averments of the answer, where it is referred to, and a copy exhibited, as 'a copy of said contract.' By its answer the defendant also expressly admits that by the...