Kawin & Co. v. American Colortype Co.

• Citation: 243 F. 317
• Decision Date: 10 April 1917
• Docket Number: 2289.
• Parties: KAWIN & CO. v. AMERICAN COLORTYPE CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

243 F. 317

KAWIN & CO. v. AMERICAN COLORTYPE CO.

No. 2289.

United States Court of Appeals, Seventh Circuit.

April 10, 1917

Jacob Ringer and Matthias Concannon, both of Chicago, Ill., for plaintiff in error.

John M Zane, of Chicago, Ill., for defendant in error.

American Colortype Company, herein called plaintiff, a New Jersey corporation, brought this suit against Kawin & Company defendant, an Illinois corporation, for failure of the latter to take and pay for certain Christmas and New Year cards ordered by the latter on July 12, 1911, to be delivered as ordered and all to be taken by December 15, 1911. The contract of purchase was by letter, and called for 4,500,000 Christmas and 500,000 New Year cards at $1.50 per thousand. The letter contained the phrase 'same subjects as 1910.' On December 14, 1911, there remained unordered and undelivered about 2,000,000 of the Christmas cards and about 150,000 of the New Year cards. On this day Kawin & Co. wrote a letter asking for prompt delivery of the balance of the cards. Plaintiff received this order on the 15th of December 1911, and on the 16th sent a letter stating the goods would be sent at once, immediately sending on 320,000 of the Christmas cards, and on December 18th 800,000 more. On the 19th of December following, defendant wrote a letter declining to receive the 320.000 of cards, because there were no New Year cards, and that, the same not having been delivered by the 15th of December, it would receive no more cards under the contract. Defendant undertook to return the 320,000 lot, but on plaintiff's refusal to accept them placed the same in storage and notified plaintiff.

The suit was brought for the purchase price, on the theory that the cards were ready for delivery within a reasonable time after they were ordered, that they were appropriated to defendant, and that a sale was effected, so that defendant became liable for the contract price. The cause went to a jury, which rendered a verdict upon that basis. It appears in evidence that after the delivery of about 320,000 of the New Year cards, and on September 8, 1911, plaintiff advised defendant that its stock of New Year cards was exhausted, and inquired whether defendant would insist on the balance of the 500,000 New Year cards, which would involve the printing of a new edition of approximately 1,500,000 cards. Defendant replied that it would not require that to be done. On December 2, 1911, defendant claims to have asked plaintiff to look around and see if it could not find more New Year cards. Plaintiff replied that it did not have any. This was followed by the repudiating letter of December 19, 1911. A letter of December 7, 1911, from defendant to one of its salesmen, was admitted in evidence, from which it might appear, and the jury might have found, that defendant was then looking for an excuse to avoid taking the balance of the cards. With reference to the phrase 'same subjects as 1910,' it appears that during that year the same parties had made a contract whereby defendant was obligated to take and plaintiff agreed to deliver 20,000,000 New Year and Christmas cards, of which 14,000,000 had been printed when defendant asked to have the order reduced. Only 9,000,000 of these were delivered, plaintiff seemingly accepting the countermanding order, leaving 5,000,000 on plaintiff's hands. It seems from the evidence the jury was warranted in finding that these last-named cards were in mind and covered the 'subjects' referred to in the contract letter of July 12, 1911. But that contract did not amount to a present sale of the 1910 cards, or to an agreement to deliver those specified cards that were then on hand. Those cards were in large sheets, which only required cutting up into cards as ordered, and were of designs selected by and printed for defendant, and suitable for any year. The evidence tended to show that upon receipt of the order of December 14, 1911, they were cut and packed for delivery. Defendant was familiar with the steps necessary to be taken to prepare them for delivery when cards were ordered.

The declaration consists of two special counts, and the common counts. Defendant filed six pleas: (1) Non assumpsit, to which a similiter was filed. (2) A plea of set-off, containing the common counts to set off certain commissions or percentages claimed on account of sales of pictures made by plaintiff to a third party, amounting to $2,000, to which plaintiff filed a replication of non assumpsit, to which replication a similiter was filed. (3) A plea setting up plaintiff's failure to comply with certain statutes of the state of Illinois requiring the filing of its charter, etc., before being qualified to do business in the state. A replication to this plea denied such failure and concluded to the country. To this a similiter was filed. (4, 5, and 6) Three pleas setting up failure of plaintiff to make report to the secretary of state of Illinois as provided by statute requiring corporations so to do, etc., and fixing penalties, such as the cancellation of its charter. To these pleas a joint demurrer was filed, and sustained by the court, which ruling was duly excepted to by the defendant. At the close of the evidence the cause was submitted to the jury, which was directed to bring in a sealed verdict. This verdict contained data from which a properly worded verdict could be arrived at, but was in respect to a definite finding of the amount of damages due to plaintiff irregular. After the verdict was rendered the jury disbanded. They were on the next morning reimpaneled and resworn, and proceeded to make their verdict plainer and more definite, rendering a verdict for $11,119.47, upon which the court entered judgment and ordered execution.

For error defendant assigns the following, viz.: The court sustained the demurrer to the fourth, fifth, and sixth pleas. It admitted in evidence certain offers of compromise and a letter to one of its employes written by defendant, over its objection. It refused the motion of defendant to instruct the jury to find for defendant. It instructed the jury that the contract in suit was separable. It refused to instruct the jury that plaintiff was not bound to deliver the cards in suit without an order before the close of business on December 15, 1911. It instructed the jury that the order in suit was severable. It refused to instruct the jury that no recovery could be had for want of mutuality. It refused to instruct the jury that, no damages having been proved, no recovery could be had. It refused to instruct the jury that, unless plaintiff was ready to deliver the whole of the cards on December 15, 1911, no recovery could be had. It charged the jury that plaintiff was entitled to a reasonable time in which to comply with the order of December 14th. It permitted the jury, after it was disbanded, to reassemble and amend its verdict.

Other facts appear in the opinion.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges.

ALSCHULER Circuit Judge (after stating the facts as above).

Plaintiff moved to dismiss the writ of error herein upon the ground that, defendant having raised the question of the jurisdiction of the District Court to render the judgment complained of, it follows that the case should have gone directly to the Supreme Court. We find no merit in the point. In United States v. Jahn, 155 U.S. 109, 15 Sup.Ct. 39, 39 L.Ed. 87, it is said:

'If the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified and come directly to this court, or to carry the whole case to the Circuit Court of Appeals, and the question of jurisdiction can be certified to by that court.'

This we deem to be the law at this time applicable to the present case. We therefore deny the motion to dismiss.

Defendant raised, as a question going to the jurisdiction, that it does not appear that diversity of citizenship exists between the parties. The declaration sets out the diversity of citizenship, but no evidence seems to have been taken on that matter. It is nowhere denied in terms, but defendant insists it was traversed by the plea of general issue. We regard this as without merit. The question was not raised by plea in abatement. In Illinois the common-law rules of practice prevail. There was no plea denying the citizenship of the parties as alleged in the declaration. That allegation was for the purposes of the present motion prima facie proof of the fact, and unless it was traversed, and proof made to the contrary, it was established as by default. We held in Adams v. Shirk, 117 F. 801, 55 C.C.A. 25, that, even when raised by plea in abatement, defendant had the burden of proving the lack of diversity of citizenship, when the proper averment appeared in the pleading by the plaintiff. This is approved in Every Evening Printing Co. v. Butler, 144 F. 916, 75 C.C.A. 657; Hill v. Walker, 167 F. 241, 92 C.C.A. 633; Hartog v. Memory, 116 U.S. 588, 6 Sup.Ct. 521, 29 L.Ed. 725; Barry v. Edmunds, 116 U.S. 550, 6 Sup.Ct. 501, 29 L.Ed. 729; Pike County v. Spencer, 192 F. 11, 112 C.C.A. 433; Water Works v. Ryan, 181 U.S. 409, 21 Sup.Ct. 709, 45 L.Ed. 927. Moreover, it was charged by defendant in its second plea that plaintiff was a citizen of New Jersey. In the absence of any plea or evidence to the contrary, this amounted to an admission.

The assignment of error on the part of the court in sustaining the demurrers to the fourth, fifth, and sixth pleas is not well taken. The pleas concede that plaintiff had duly qualified to do business in the state of Illinois and was still so qualified, but allege that, after the contracts had been executed, the...