Hadfield-Penfield Steel Co. v. Eastern Prod. Co.

• Citation: 281 F. 382
• Decision Date: 06 June 1922
• Docket Number: 3657.
• Parties: HADFIELD-PENFIELD STEEL CO. v. EASTERN PRODUCTION CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

281 F. 382

HADFIELD-PENFIELD STEEL CO. v. EASTERN PRODUCTION CO.

No. 3657.

United States Court of Appeals, Sixth Circuit.

June 6, 1922

Tolles Hogsett, Ginn & Morley, of Cleveland, Ohio, for plaintiff in error.

Squire Sanders & Dempsey, of Cleveland, Ohio, W. J. Griffin, of Detroit, Mich., and William C. Boyle and Thomas M. Kirby both of Cleveland, Ohio, for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

The Steel Company, as purchaser, entered into a contract with the Production Company, by which the latter was to build certain machines and furnish them to the Steel Company. The production was to be paid for on a time and material cent. The machines were furnished, and this action was brought in the District Court against the Steel Company, to recover the unpaid balance of the agreed compensation. The controversy was centered upon three matters:

(1) The original time slips turned in by the workmen had not been preserved, and the plaintiff sought to prove the number of hours by producing certain relatively secondary entries kept by a system of cards. The defendant denied that these were competent evidence.

(2) In making up its invoices for hours of labor, plaintiff took the total hours upon a certain piece of work shown by these cards, and then added 17 1/2 per cent. to cover labor not included in the card record. Defendant disputed this excess.

(3) Plaintiff had some of the work done for it by other factories and at a cost of more than $1 per hour. In making up its invoices, it took the amount which it had paid for a particular job and added 10 per cent. The defendant disputes liability for anything over $1 per hour.

There was no written stipulation waiving a jury trial, but by consent a referee was appointed 'to examine the records and the evidence now on file or thereafter taken herein, and to make special findings of fact on the issues joined between the parties and report the same to the court. ' Testimony was taken before the referee. He made findings of fact and conclusions of law; the defendant filed exceptions, which probably should be classified as exceptions only to the conclusions of law; the case was heard before the District Judge on the defendant's exceptions; and the exceptions were overruled, and the referee's report confirmed. The resulting judgment for the plaintiff is brought here for review. The errors claimed are that the card records of time spent were inadmissible, and that both the addition of the 17 1/2 per cent. and of all charges over $1 an hour for time were unauthorized by the contract.

In the absence of any written stipulation under R. S. Sec. 649 (Comp. St. Sec. 1587), so as to permit the full review contemplated by section 700 (Comp. St. Sec. 1668), it is clear that we have no jurisdiction to review any question, save whether the finding of facts made by the referee supports the judgment entered by the court. Cleveland v. Walsh Co. (C.C.A. 6) 279 F. 57. The record contains what is called a bill of exceptions, certified by the District Judge, purporting to show all the evidence offered and received and proceedings had before the referee; but this is unauthorized and cannot be considered, as this court early held in Shipman v. Ohio, 70 F. 652, 656, 17 C.C.A. 313. This disposes of the first error claimed.

When we come to inquire whether the findings support the judgment in the particulars in which it is challenged, we observe that the findings of fact are incomplete, are somewhat in the nature of comments on the evidence, and evidently are intended to be only supplementary to things not in dispute. In view of the attitude of both parties and the absence of any criticism upon the findings in this respect, we are inclined to treat them in the same way, and to interpret and supplement them by the facts which counse...