Hecht v. Alfaro

• Decision Date: 01 February 1926
• Docket Number: No. 4588.,4588.
• Citation: 10 F.2d 464
• Parties: HECHT v. ALFARO.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.2d 464 (1926)

HECHT v. ALFARO.

No. 4588.

Circuit Court of Appeals, Ninth Circuit.

February 1, 1926.

H. U. Brandenstein and R. A. Carter, both of San Francisco, Cal., for plaintiff in error.

Goldman & Altman, of San Francisco, Cal., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The only rulings of the trial court presented by the bill of exceptions and assignments of error are rulings upon the admission of testimony. The plaintiff in his brief makes but cursory reference to those rulings, and we shall discuss them with like brevity. It was not error to require the plaintiff to say whether he made any complaint to the defendant when he ascertained that the coffee was not shipped on the first available vessel. That evidence was pertinent to the defendant's plea that the plaintiff had waived shipment in May. For like reason it was not error to prove that the plaintiff never advised the defendant prior to the arrival of the coffee in San Francisco, that he would not accept it because it was not shipped in May, or to prove that the plaintiff never notified the defendant that he was holding the coffee for his account, or that he never advised him that he had resold the coffee.

It was proper to admit testimony to show that La Agencia National Limitada had the monopoly of the shipping at the port of Acajutla. That was a fact known to both parties to the action long before the contract was entered into. It was clearly competent for the defendant to prove through an officer of La Agencia that on April 27, 1920, he gave the agency instruction to ship the coffee on the Rainier on its first trip north. Nor was it reversible error to admit evidence that a yellow fever epidemic at that time had some influence in delaying shipments at Acajutla, for the reason that steamers did not call as regularly as was customary. And it was clearly competent to offer evidence that the agency at Acajutla had exclusive charge of carrying out the instructions of shippers according to the facilities at the port.

The plaintiff asserts that the sole issue upon the trial in the court below was as to whose duty it was to secure the transportation of the coffee. He presents for the consideration in this court assignments of error directed to the verdict and the judgment, which he contends are erroneous, in that they are wholly unsupported by any evidence of the defendant's performance of the contract, and he contends that under the evidence the obligation to furnish transportation and to furnish it during the month of May, 1920, rested upon the defendant. Such assignments present nothing for the consideration of an appellate court. They bring up for review no ruling of the trial court. They do not show that at any point in the proceedings the court below committed error. Upon no question thus presented does it appear that the trial court was requested to make a ruling or give an instruction to the jury. This court has no authority to retry an action at law and render such judgment as we may think should have been rendered. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it. Oregon R. & Nav. Co. v. Dumas, 181 F. 781, 104 C. C. A. 641; Bort v. E. H. McCutchen & Co., 187 F. 798, 109 C. C. A. 558...