Illinois Car & Equipment Co. v. Linstroth Wagon Co.

• Decision Date: 07 January 1902
• Docket Number: 778.
• Citation: 112 F. 737
• Parties: ILLINOIS CAR & EQUIPMENT CO. v. LINSTROTH WAGON CO. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

112 F. 737

ILLINOIS CAR & EQUIPMENT CO. v. LINSTROTH WAGON CO. ^[1]

No. 778.

United States Court of Appeals, Seventh Circuit.

January 7, 1902

A. R Sheriff, for plaintiff in error.

Israel Shrimski, for defendant in error.

The action is in assumpsit, brought by the defendant in error the Linstroth Wagon Company, for brevity called the 'Wagon Company,' against the plaintiff in error, the Illinois Car & Equipment Company, for brevity called the 'Car Company,' to recover damages for default in the performance of a contract dated January 21, 1899, by which the Car Company agreed to furnish the Wagon Company its season's supply of merchants' bar iron, not to exceed 300 tons, at $1.12 rate, one-half extras, f.o.b. mill, less freight to St. Louis, on certain terms stated; delivery February and September, both inclusive. The contract on behalf of the Car Company was made by the firm of L. B. & J D. Ripley, its sales agents at St. Louis, where the wagon company was located. The Car Company was the proprietor of certain mills at Anniston, in the state of Alabama, where it was contemplated the iron was to be manufactured; its general offices being in the city of Chicago. Up to June 1, 1899, the Wagon Company from time to time handed to the Ripleys specifications for iron to be delivered under the contract according to the usual method of dealing between the Car Company and its customers in the city of St. Louis, and these were forwarded to the Car Company, and were accepted and acted upon by it. The Car Company delivered 190 tons of the iron in accordance with the specifications. On that date the Car Company leased to the Southern Car & Foundry Company, for brevity called the 'Southern Company,' its real property, works, and plant at Anniston, Ala., for the term of five years, and assigned to the Southern Company the contracts theretofore entered into by the Car Company including the contract in question; the Southern Company agreeing with the Car Company to perform and execute the contract. The Southern Company shipped to the Wagon Company some of the iron for which the Car Company had received specifications. The Wagon Company was notified of this lease, and subsequent specifications were forwarded to the Southern Company by the direction of the Ripleys, and through them. The 300 tons of iron contracted for were thus specified by August 16, 1899, but there was failure to deliver 109 tons. The action was brought to recover damages for such failure. The first and second counts of the declaration declared upon a sale of 300 tons of merchants' iron at the price stated, and failure to deliver. The third count sets out the contract in haec verba, and alleges failure to deliver. The fourth count declares the common counts in assumpsit. There were some amended counts, not materially changing the status. The Car Company pleaded the general issue, with an additional plea setting up the defense of novation. The trial resulted in a verdict for the Wagon Company. The errors assigned have reference to proceedings at the trial, and are sufficiently stated in the opinion.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

JENKINS Circuit Judge, after stating the facts as above, .

The objections urged are mainly technical, and many of them without merit, not justifying extended consideration. We speak to such as are deemed worthy of comment.

Certain impression copies of originals delivered to the Car Company by the Ripleys were offered in evidence in connection with the deposition of one of the Ripleys, being letterpress copies of the contract in question and of the specifications for iron delivered to the Ripleys and forwarded to the Car Company. These were duly proved to be copies, but at the trial it was objected that no notice had been given to produce the originals at the time of the taking of the depositions. It was conceded that timely notice to produce them at the trial had been given, and the Car Company declined to produce them, stating that they had been lost. We fail to appreciate the force of the objection. The originals were in possession of the Car Company. They had been delivered to them. If they were lost prior to the taking of the deposition, notice to produce would have been unavailing. If not lost, the company should have produced them at the trial upon notice. We think it sufficient that timely notice to produce was given after the taking of the deposition and before the trial.

It is objected that the copy of the contract produced was not stamped with the proper revenue stamp of the United States, and that there was no proof that the original was so stamped. No such objection was presented at the trial. The objection was first urged upon a motion for a new trial. We are not at liberty to review the action of the trial court in granting or refusing a new trial. If we were, the objection would still be too late. It should have been made when the document was offered in evidence. It would then have been in time to have obviated the objection by stamping the instrument, if a stamp were necessary. Noonan v. Mining Co., 121 U.S. 393, 400, 7 Sup.Ct. 911, 30 L.Ed. 1061; Patrick v. Graham, 132 U.S. 627, 629, 10 Sup.Ct. 194, 33 L.Ed. 460. The suggestion of counsel, that through the ruling or negligence of the courts the revenue of the government may be defeated if this objection be not sustained, is gratuitous. It might have more weight if anxiety in that behalf had been earlier exhibited by timely objection.

The objection to the introduction of the memorandum book containing the specifications for iron ordered under the contract is equally without merit. This book contained the original specifications, from which the Ripleys copied them to forward to the Car Company. The evidence shows that it was the custom of business for the Ripleys thus to copy them and to forward them to the Car Company, which accepted...