Consumers' Cotton-Oil Co. v. Ashburn

• Decision Date: 25 May 1897
• Docket Number: 565.
• Citation: 81 F. 331
• Parties: CONSUMERS' COTTON-OIL CO. v. ASHBURN.
• Court: U.S. Court of Appeals — Fifth Circuit

81 F. 331

CONSUMERS' COTTON-OIL CO. v. ASHBURN.

No. 565.

United States Court of Appeals, Fifth Circuit.

May 25, 1897

Geo Clark and D. C. Bolinger, for plaintiff in error.

A. C Prendergast and Wm. Evans, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and NEWMAN, District Judge.

NEWMAN District Judge.

It appears from the record in this case that in September, 1893 W. I. Yopp, as the representative of the Consumers' Cotton-Oil Company, entered into negotiations with E. J Ashburn, at Waco, Tex., for the sale by said company to Ashburn of certain cotton-seed meal and hulls. The conversation and negotiations finally resulted in what is claimed by Ashburn to have been a contract for the sale by the said company to Ashburn of 2,600 tons of hulls and 600 tons of meal; the hulls at $2.75 per ton, and the meal at $17.25 per ton. A memorandum was made at the request of Yopp by R. B. Dickey, superintendent of the Consumers' Cotton-Oil Company Mill, at Waco, of the transaction. While Ashburn claims that what was done was to be binding if he accepted it within 24 hours, which he did, the company claims that when Ashburn accepted it, and so notified Dickey, Yopp was to be notified by wire at Houston, and he was to have opportunity to confer with his company at its headquarters, in Chicago, before the trade became binding. The result of the matter was, however, that the company declined the contract,-- declined to carry it out, according to Ashburn's version, and declined to make it, according to the company's version. After some further negotiations and correspondence, on the 30th day of October, 1893, there resulted a contract which will be shown by the following letter, written by Yopp from Houston, Tex., to Dickey, at Waco, and subsequently signed by Ashburn:

'Houston, Texas, October 30th, 1893.

'Mr. R. B. Dickey, Mngr., Waco, Texas.

'Ashburn Contract.

'Dear Sir: Referring to contract with E. J. Ashburn for hulls and meal, I sent him telegram dated Little Rock, Sept.29th, reading: 'Offer thousand tons hulls at $4.00, and 300 tons mean at $20.00, equal quantities daily for four months, beginning Oct. 15th, but will not furnish ground. This subject immediate acceptance by wire.' Ashburn's answer on same date as follows: 'Your telegram received, pricing meal and hulls. I will accept your proposition.' You will therefore deliver hulls and meal as above outlined, and collect for same on the 1st of each month, beginning with the 1st of November, as originally understood between Mr. Ashburn and myself. To avoid any misunderstanding, you better submit this letter to Mr. Ashburn for his signature, and advise me whether he signs same or not.

'Yours truly, . . . W. I. Yopp, Genl. Mngr. Mills.

'E. J. Ashburn.'

This contract having been made for 1,000 tons of hulls, at $4, and 300 tons of meal, at $20, the company proceeded to deliver both the hulls and the meal in accordance with the contract. At the conclusion of the contract Ashburn was indebted to the company in the sum of $2,395.77, which he failed to pay, and for which suit was brought by the company against Ashburn in the circuit court of the United States, on March 29, 1894. Prior to the time that this suit by the company against Ashburn came on for trial, suit had been brought by Ashburn against the company, in the state court, for $10,000, damages for breach of what he alleged was a contract for the sale to him of the 2,600 tons of hulls and 600 tons of meal, in September, 1893. This latter case was removed on application of the defendant into the circuit court of the United States, and by consent and by order of the court both cases were tried together. When the cases came on for trial, Ashburn admitted in open court that he was indebted to the company in the sum of $2,395.77, which, with interest to that date, amounted to $2,818.20, and the trial proceeded on his suit for damages, and resulted in a verdict for Ashburn against the company for $4,900, from which was deducted the amount of the company's recovery against Ashburn, leaving a net recovery by Ashburn against the company for $2,081.80, for which judgment was entered.

For a proper disposition of this case here, two questions only need be considered. It is claimed that the court erred in instructing the jury that the measure of damages was the difference between the price at which the Consumers' Company agreed to sell the hulls and meal to Ashburn, and the price Ashburn subsequently had to pay, the contention being that the correct measure of damages under the law applicable to the case was the difference between the price stipulated in the contract sued on by Ashburn, and the market value of the cotton-seed hulls and meal at the place of delivery, on the several days when the several deliveries should have been made under the contract. While we think the contention is sound, and that the court erred in this instruction, it cannot be considered here, for the reason that no proper exception was taken and reserved by counsel for the company at the time. It is claimed that under the statutes of Texas (Rev. St. Tex. art. 1318) which provide that exceptions may be assigned to any part of the charge of the court, without having the same noted at the time, that this court will consider exceptions made here, although not properly saved in the court below. The contention is that the rule and practice of the state court are applicable in this respect in the federal court. We do not so understand it.

It is well settled that the act of congress of 1872, providing that the practice, etc., in the federal courts shall conform 'as near as may be' to the practice, etc., in the state courts, does not apply to the established practice relating to the manner of submitting cases to the jury by the judge of the federal court; nor does it apply to the well-understood practice of requiring exceptions to the charge to be made while the jury is at the bar, and...