Goddard v. Crefield Mills

• Decision Date: 29 July 1896
• Citation: 75 F. 818
• Parties: GODDARD et al. v. CREFIELD MILLS.
• Court: U.S. Court of Appeals — Second Circuit

75 F. 818

GODDARD et al. v. CREFIELD MILLS.

United States Court of Appeals, Second Circuit.

July 29, 1896

This case comes here on a writ of error to review a judgment of the circuit court, Southern district of New York, entered upon the verdict of a jury in favor of defendant in error who was plaintiff below. The action was brought to recover for damages by plaintiff, a Connecticut corporation, by reason of the failure of the defendants to take certain goods under a contract pursuant to which plaintiff was to manufacture and sell to the defendants 5,000 pieces of cotton goods. By the terms of this contract, defendants were to select the pattern out of samples submitted to them, and thereafter were to give weaving orders, and subsequently dyeing orders, whereupon plaintiff was to manufacture and deliver the goods. The defendants contended that it was also agreed upon, as a part of the contract, that plaintiff should not make for or sell to any one else, during the pendency of the contract, any goods like the goods to be manufactured for defendants, and that plaintiff broke the contract in bat particular. There was a conflict of proof as to whether the contract contained any such agreement, and whether, if it did, plaintiff broke it. The verdict of the jury being in favor of plaintiff, little is presented upon this writ of error, except alleged errors in the admission or exclusion of testimony.

Abraham Gruber and Joseph H. Choate, for plaintiffs in error.

William B. Hornblower, for defendant in error.

Before LACOMBE and SHIPMAN, Circuit Judges, and TOWNSEND, District Judge.

LACOMBE Circuit Judge (after stating the facts).

1. It is assigned as error that the court refused to allow the witness Pope to give his opinion, as an expert, as to 'what would be a reasonable time for the performance of the contract. ' The complaint averred that the respective parts of the contract were to be performed at and within reasonable times, respectively,-- an averment denied by the answer. It was part of the plaintiff's case, therefore to prove that the contract did contain such a clause, and also what a reasonable time really was. This last could be shown either by the opinion of experts, or by showing acts of the parties tending to show what period of time they contemplated. Plaintiff pursued the latter course, and rested. Thereupon defendants proceeded with their case. In the course of it, their principal witness, one of the defendants, who was undoubtedly an expert, was cross-examined on that branch of the case; the specific question being put to him, 'What do you call a reasonable time?' and the same query propounded in different forms. The defendants having rested, plaintiff proceeded in rebuttal, but called no expert as to what was a reasonable time. Thereupon, the case being finally closed by both sides, defendants recalled the witness Pope, whom they had once examined, and offered to show by him 'what would be a reasonable time. ' The record contains no excuse for this belated tender of evidence, which defendants had had abundant opportunity to introduce in its proper place, and the court quite rightly refused to open the case to let it in.

2. It is assigned as error that a question asked upon the cross-examination of the witness McColl was excluded. Under the pleadings, plaintiff had only to prove the contract as it understood it, and to show the breach of it by defendants. It would have been improper for plaintif...