"1. The court instructs the jury that, although the burden of proof is on the plaintiff, that they are the judges of the evidence, of the credibility of the witnesses, and of the weight to be given to the testimony of each witness.
"2. The court instructs the jury that if they believe from the evidence that the contract of July 1, 1926, between the plaintiff and the defendant, the New River Coal Company, was not assigned by the plaintiff, but that the plaintiff subsequently on or about November 17, 1926, agreed to continue and did continue its corporate existence for the purpose of carrying out said contract, and that if they further believe from the evidence that said contract was never canceled, in accordance with its terms and provision, by the said New River Coal Company, and, further, that the plaintiff ordered from the said defendant the coal as set out in the petition in this cause and tendered New York drafts in payment of the same in the amounts called for in said contract, that then they should find for the plaintiff and assess its damages at the difference between the contract price of $2 per ton during October and $2.70 per ton from November 1st to November 17th, f. o. b. mines, and the wholesale price f. o. b. mines at the time when the respective deliveries should have been made under the contract; but no recoverycan be had on shipments due after November 17th except nominal damages.
"3. The court instructs the jury that if they shall believe from the evidence that in the month of September, 1926, the market price of coal had advanced so that the defendant by canceling its contract with the plaintiff could obtain a higher price therefor than by performing the said contract, and that the defendant undertook to cancel said contract for the purpose of obtaining such increased price and not bona fide and in good faith for any reason which it might have had to cancel the same under the terms thereof, if in fact it had any such right, then their verdict must be for the plaintiff.
"4. In connection with instruction 0-2, which I will read you later, the court further instructs the jury that if they find from the evidence that the plaintiff American Ice Company and the new J. Maury Dove Company, did not intend an assignment of the contract in suit to be made until a formal instrument of assignment should be executed and delivered, a presumption exists that no assignment was made until such formal instrument was executed and delivered.
"5. The court instructs the jury that, as a general rule, a party to a contract may assign all his beneficial rights, except where a personal relation is involved, or where it appears from the contract that it was not the intention of the parties that such rights should be assigned. But the court further instructs the jury that a party may not assign) his liability under the contract, because any one who is bound to any performance whatever, or who owes money, cannot, by any act of his own or by any act in agreement with any other person than his creditor or the one to whom his performance is due, casts off his own liability and substitute another's liability.
"If the jury believe from the evidence that the plaintiff in this case assigned its rights under the contract of July 1, 1926, to the American Ice Company or its nominee by virtue of the contract of September 24, 1926, between the plaintiff and said ice company, and action taken by them in the execution and performance of said contracts, then the court instructs the jury that the plaintiff cannot recover in this action and they must find a verdict for the defendant
"6. The court instructs the jury that the contract sued on in this case provides that if the defendant has reason to believe that the credit of the plaintiff was impaired, it should have the right to cancel the contract, and if the jury believe from the evidence that the defendant, through its officers or employees, after the execution of the contract of July 1, 1926, had reason to, and did, believe that the credit of the plaintiff was impaired, and so notified the plaintiff, either on the 18th or 21st day of September, or thereafter, and signified its intention to cancel said contract, and thereafter refused to deliver any further coal to the plaintiff, they should find a verdict for the defendant.
"7. The court instructs the jury that an assignment of the contract for the sale of personal property need not be a formal document and need not be in writing, but may be oral. Any language, written or oral, which shows an intention of transferring or appropriating a chose in action or contract to or for the use of another, if based upon a valuable consideration, M
will operate as an assignment of the rights of the assignor in respect of or under sueh chose in action or contract."
"C-l. The court instructs the jury that the contract of July 1, 1928, between New River Coal Company and the J. Maury Dove Company of Washington, D. C, was such a contract as could be properly and legally assigned.
"C-2. The court instructs the jury that the contract of September 24, 1926, between J. Maury Dove Company, of Washington, D. C, and the American Ice Company, coupled with the subsequent acts of the parties, would not of itself necessarily constitute an assignment of the contract. In order for there to have been an assignment the jury must believe from the evidence that at some stage by the proceedings there was a meeting of the minds of the assignor and the assignee, or its nominee, at which time it was understood and agreed that the contract should be then assigned notwithstanding the objections of the defendant. No written assignment is essential, but you must believe from the evidence that the assignor and assignee proceeded so far with the execution of the purposes of the contract of September 24th that they themselves considered the contract of July 1st assigned and acted upon such assumption. In that event their executory contract of September 24th, coupled with their acts and conduct, would constitute a complete and valid assignment. Whether such assignment occurred, however, is a matter for the jury to determine from the application of the above principle to the evidence before you.
"C-3. If you find under instruction 2 above that the said contract was assigned by the plaintiff to the American Ice Company or its nominee, the J. Maury Dove Company, of Delaware, then you are instructed that the plaintiff by that act divested itself of its rights under the contract and cannot maintain this suit and you should find for the defendant
"C-4. If you find under instruction 2 above that the contract was not assigned you will next determine whether the contract was canceled by the defendant in accord with its provisions, and in this connection you are instructed that if you believe from the evidence that the defendant discontinued shipments under the contract because it had received information that caused it to believe in good faith that the plaintiff's credit had been further impaired, and that the defendant refused to make further shipments to the plaintiff for the reason, then or thereafter expressed to the plaintiff, that the defendant believed from information received that the plaintiff's credit had been impaired, then the defendant was within its rights in canceling the contract.
"On the other hand the defendant could not arbitrarily cancel the contract, and should you believe from the evidence that defendant's refusal to ship further coal under the contract was not actuated by the bona fide belief that plaintiff's credit had been impaired, then it was not justified in such refusal and you should find for the plaintiff.
"C-5. Should you find for the plaintiff the court tells you that the usual and proper measure of damages is the difference between the contract price of $2 per ton during October and $2.70 per ton during November and December, f. o. b. mine, and the wholesale price f. o. b. mines at the time when deliveries should havebeen made. But the purpose of the law is merely to compensate the innocent party to a breached contract for the damages actually suffered as a result of the breach. Therefore should you find that by the agreement of November 17th the plaintiff contracted to sell all the coal purchased under the contract of July 1st to the J. Maury Dove Company, of Delaware, at cost, not obligating itself to sell any more coal than should be received from the defendant under said contract of July 1st, then the plaintiff suffered no pecuniary loss by a breach of the contract, and, having lost nothing, can recover nothing in this suit other than nominal damages for any shipments due subsequent to November 17th. So that from October 1st to November 17th the measure of damages is the difference between the contract price above mentioned and the market price at the time shipments were due, and subsequent to November 17th only nominal damages can be awarded."
