Distilling & Cattle Feeding Co. v. Gottschalk Co.

• Decision Date: 20 March 1895
• Docket Number: 199.
• Parties: DISTILLING & CATTLE FEEDING CO. v. GOTTSCHALK CO.
• Court: U.S. Court of Appeals — Seventh Circuit

66 F. 609

DISTILLING & CATTLE FEEDING CO. v. GOTTSCHALK CO.

No. 199.

United States Court of Appeals, Seventh Circuit.

March 20, 1895

J. S Stevens for plaintiff in error.

A. W Green and W. Pinkney Wyte, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

WOODS Circuit Judge.

The appellee, the Gottschalk Company, a corporation of Maryland sued the appellant, the Distilling & Cattle Feeding Company a corporation of Illinois, in assumpsit upon special and common counts, to recover money alleged to be due as rebates under a contract between the parties. A more particular statement is unnecessary here. The opinion delivered in the circuit court is reported in 62 F. 901. The court, by written consent of the parties, tried the case without the aid of a jury, and, having refused a number of propositions, some of law and some of fact, which the appellant had submitted, made a general finding of the issues for the appellee, and gave judgment accordingly.

The assignment of errors contains two specifications to the effect that the court erred-- First, in refusing each of the propositions submitted; and, second, in finding that there had been no violation of the condition upon which sales were made by the plaintiff in error to the defendant in error. No question is presented by either specification of which this court can take cognizance. Before the act of March 3, 1865 no decision by the court in the trial of a case at law, in which the jury had been waived, could be reviewed upon writ of error. Campbell v. Boyrean, 21 How. 223. By that act, the provisions of which have been embodied in sections 649 and 700 of the Revised Statutes, the right of review is given in respect to 'the rulings of the court in the progress of the trial of the cause'; and, 'when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment.' It is also provided that 'the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.' The meaning and effect of these provisions have been under frequent consideration, and it is well settled that no question involved in a general finding by the court in a case at law, when a jury has been waived, can be the subject of review. 'If a jury is waived, and the court chooses to find generally for one side or the other, the losing party has no redress on error, except for the wrongful admission or rejection of evidence.' Dirst v. Morris, 14 Wall. 484; Insurance Co. v. Folsom, 18 Wall. 237; Tyng v. Grinnell, 92 U.S. 467; Stanley v. Supervisors, 121 U.S. 535, 7 Sup.Ct. 1234; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481; St. Louis v. W.U. Tel. Co., 148 U.S. 92, 13 Sup.Ct. 485; Reed v. Stapp, 3 C.C.A. 244, 9 U.S.App. 34, 52 F. 641; Skinner v. Franklin Co., 6 C.C.A. 118, 9 U.S.App. 676, 56 F. 783, and cases cited; Bowden v. Burnham, 8 C.C.A. 248, 59 F. 752; Searcy Co. v. Thompson, 66...