Cub Fork Coal Co. v. Fairmont Glass Co.

• Decision Date: 27 May 1927
• Docket Number: No. 3838.,3838.
• Citation: 19 F.2d 273
• Parties: CUB FORK COAL CO. et al. v. FAIRMONT GLASS CO.
• Court: U.S. Court of Appeals — Seventh Circuit

19 F.2d 273 (1927)

CUB FORK COAL CO. et al. v. FAIRMONT GLASS CO.

No. 3838.

Circuit Court of Appeals, Seventh Circuit.

May 27, 1927.

Connor Hall, of Huntington, W. Va., for plaintiffs in error.

Paul Y. Davis, of Indianapolis, Ind., for defendant in error.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

EVANS, Circuit Judge.

This action was one for damages for alleged breach of contract. A judgment for defendant followed the rendition of a general verdict in its favor.

Plaintiff sold defendant 17,500 tons of coal to be delivered — 1,000 tons the first month (July), and 1,500 tons each month for the succeeding 11 months. The coal was to be "paragon or Cub Fork egg. In case shipper is unable for any reason to deliver the full tonnage in egg size, mine run will be accepted." Deliveries were "subject to strikes, accidents, car supply, federal and state regulations, constraint of law, and other causes beyond our control." It was further provided that "the material shall be shipped * * * in so far as the labor and the ability of the carriers will permit."

It was alleged in the complaint that the shortage in deliveries which occurred during certain months (July, August, and October) was due to plaintiffs' inability to get cars; that "during the period aforesaid, upon the Chesapeake & Ohio Railroad, the only common carrier transporting coal from the said mines, there existed and continued a great deficiency in coal cars," etc. After the contract had been in force for about 5½ months, defendant wired plaintiffs: "Stop all shipments to us until further notice. See letter." In the letter defendant called plaintiffs' attention to their failure to ship the specified amounts of coal and complained of the quality delivered. It also demanded a reduction in price and notified plaintiffs to make no further shipments.

All the coal shipped up to this time had been accepted and paid for.

While further negotiations were had, both parties refused to yield from the positions by them taken, and this litigation followed. That is to say, plaintiffs refused to reduce their price, insisted that the coal delivered was of the grade specified, and that their failure to ship the designated quantity was due to car shortage. Defendant refused to accept more coal unless the price was reduced, and insisted that it had been obliged to purchase coal elsewhere. Thus it will be seen that one of the contested issues on the trial arose over plaintiffs' failure to ship 1,500 tons for each of certain months.

Error is assigned over the rejection of evidence offered by the plaintiffs tending to establish a car shortage. One Hodges who described himself as "the statistician in charge of coal car accounts" of the Chesapeake & Ohio railroad, testified that his company published monthly bulletins showing the allotment of cars to coal companies for the succeeding 30 days. This allotment was based upon the affidavits of the shippers and represented the latter's requirements. From the records before him, he testified to the plaintiffs' allotments. He was then asked to state the number of cars furnished during the months wherein plaintiffs failed to ship defendant the 1,500 tons of coal. The objection to this question was sustained, but not until the witness had testified that the record which he had in his possession was made up in his office, and was based upon reports sent him, in the due course of business, by one Malley, an employee of the railway whose position was described as "a local car distributor." Malley sent daily reports, which showed the "ratings of the mines, cars, orders, supplies, loadings, hours worked and cars billed east and west." These daily reports were preserved and on file with the Chesapeake & Ohio Railway Company. In the due course of business the reports were transferred into permanent book form, and the witness had this record, but not the daily mine reports, in court.

The materiality of this evidence is not denied. Defendant, however, questioned its competency, and on this ground the court excluded it. The rules governing the admissibility of evidence of this character have of necessity changed somewhat with the changing methods and growth of business houses. The definition of a book of original entry is doubtless more inclusive today than it was a century ago. Yet we doubt whether, had the complexity and size of modern business transactions existed then, the more restricted definitions would have been pronounced. In other words, the courts made the exception fit the existing needs. At first they were dealing with a situation where the number of employers was few, the transactions simple, and the field of business activity limited. It was not so difficult, at least not impossible, to secure the best evidence — the testimony of an employee who conducted the entire transaction. With the increase in the territorial range of business as well as in the number of employees, the difficulty of producing all the witnesses who could give first hand information increased. In some instances, these obstacles became insurmountable. It was this situation which led to what is generally called an...