Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter

• Decision Date: 08 April 1929
• Docket Number: No. 141.,141.
• Citation: 32 F.2d 195
• Parties: KUNGLIG JARNVAGSSTYRELSEN v. DEXTER & CARPENTER, Inc.
• Court: U.S. Court of Appeals — Second Circuit

32 F.2d 195 (1929)

KUNGLIG JARNVAGSSTYRELSEN v. DEXTER & CARPENTER, Inc.

No. 141.

Circuit Court of Appeals, Second Circuit.

April 8, 1929.

COPYRIGHT MATERIAL OMITTED

Gustav Lange, Jr., of New York City, for appellant.

Haight, Smith, Griffin & Deming, of New York City (Charles S. Haight and Wharton Poor, both of New York City, of counsel), for appellee.

Before MANTON and SWAN, Circuit Judges, and CAMPBELL, District Judge.

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

More than 50 errors have been assigned, but the questions presented for decision are comparatively few in number. The chief attack is based upon a claim of sovereign immunity. Before discussing that question, however, we will deal with other alleged errors.

The theory of the counterclaim was that the contract of December 4, 1919, nominally between Dexter & Carpenter and Beijer & Co., was really made by the latter as agent for the Railways, or, if not originally so made, was subsequently ratified and adopted by the Railways as its contract. In opposition to this theory, the Railways contended that Beijer & Co. was an independent contractor, from whom they purchased the coal under a contract originally made on November 1, 1919, and modified by a document dated January 16, 1920. These opposing contentions were submitted to the jury, whose verdict is equivalent to a finding that the Railways either authorized or adopted the contract between Beijer & Co. and Dexter & Carpenter. Without specifying the evidence which leads us to the conclusion, it suffices to say that there was enough evidence to justify leaving the issues of agency and ratification to the jury.

Much of the evidence relating to the agency of Beijer & Co. consisted of declarations by the agent, which by themselves would be inadmissible to establish the fact of agency. There was, however, other evidence tending to prove such fact. The original complaint of the Railways alleged the agency of Beijer & Co. and the making by them on the Railways' behalf of a contract with Dexter & Carpenter. This complaint was verified on information and belief by the Railways' attorney. After the defendant's counterclaim was interposed, the allegations of agency were stricken from the complaint by amendment, and on the trial much evidence was introduced to prove that the attorney was not authorized to make such allegations, and that he had made them under a mistaken interpretation of the facts then known to him, and without complete information as to the relations between the Railways and Beijer & Co. The court left to the jury the determination of what weight to give to the allegations of the original complaint in the light of all the evidence.

Error is now assigned to the receipt in evidence of the original complaint, which was offered by the defendant both as evidence of agency, and as a formal ratification of the contract. One ground of objection to its admission was lack of proof of authority of the Railways' attorney to bind his client by the averments of the pleading. Such an objection is clearly not sustainable. A pleading prepared by an attorney is an admission by one presumptively authorized to speak for his principal. See Putnam v. Day, 22 Wall. 60, 22 L. Ed. 764; Shaft v. Phœnix Mut. Life Ins. Co., 67 N. Y. 544, 23 Am. Rep. 138; N. E. Road Machinery Co. v. Vanderhoof, 19 F.(2d) 331 (C. C. A. 1); Christy v. Atchison, T. & S. F. Ry. Co., 233 F. 255 (C. C. A. 8).

A further objection was based upon the fact that the complaint had been superseded by an amended pleading. This objection is likewise unavailing. When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extrajudicial admission made by a party or his agent. 2 Wigmore, Evidence, § 1067; Evans v. Daniel, 289 F. 335 (C. C. A. 9); Ranken v. Probey, 136 App. Div. 134, 120 N. Y. S. 413; Daub v. Englebach, 109 Ill. 267; Guy v. Manuel, 89 N. C. 83. If the agent made the admission without adequate information, that goes to its weight, not to its admissibility. There was no error in receiving the original complaint in evidence.

Likewise, and for similar reasons, it was proper to receive the Railways' libel against the United States for loss of the cargo of coal shipped on the steamer Alderman. Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 L. Ed. 393, Lehigh Valley R. R. Co. v. Allied Machinery Co., 271 F. 900 (C. C. A. 2).

Under the terms of the contract sued on, shipments of coal were "to begin within 30 days after the raising of the government embargo on export coal and to be completed within 6 months thereafter." It was also provided that shipments were to go forward in as nearly equal monthly installments as possible, that is, "approximately 30,000 tons per month," but deliveries were expressly made subject to all governmental restrictions and regulations. The embargo was lifted on May 1, 1920, but up to September 17, 1920, governmental regulation of the railroads had prevented Dexter & Carpenter from making shipment of more than about 50,000 tons. Consequently, as we held on the previous appeal, they were entitled to ship 30,000 tons during the latter part of September and a like amount in the month of October. Despite our prior decision, the Railways attempts to argue that the right to ship expired on September 30. It would suffice to say that the question is no longer open. Thompson v. Maxwell, 168 U. S. 451, 456, 18 S. Ct. 121, 42 L. Ed. 539. But, were we to go into it again, we should reach the same conclusion. The language of the contract is clear that shipments might continue up to October 31st. We find nothing in Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366, so much relied upon by appellant, to cast doubt upon this conclusion.

It is urged that the verdict is based upon an erroneous measure of damages. This was a c. i. f. contract for the sale of coal to be delivered in Swedish ports, payment to be cash against documents in New York. Under such a contract the seller's duty to deliver will be performed when the coal is loaded on shipboard at the port of shipment. Biddell Bros. v. Clemens Horst Co., 1911, 1 K. B. 214, 220; Sagall v. Finlay, 245 N. Y. 61, 156 N. E. 97; Setton v. Eberle-Albrecht Flour Co., 258 F. 905 (C. C. A. 8). The measure of damages is the difference between the market and the contract price at the time when and place where delivery was due. United States v. Burton Coal Co., 273 U. S. 337, 47 S. Ct. 351, 71 L. Ed. 670, Setton v. Eberle-Albrecht Flour Co., supra. Dexter & Carpenter introduced evidence to establish the market value of the coal at tidewater ports, during September and October, 1920, the freight rates then prevailing for shipment of coal to the designated Swedish ports, and the cost of insurance on such shipments. The total of these three items, deducted from the contract price, would give the seller's damages. There was also testimony that the supply of coal, of ships, and of insurance was sufficient to have enabled Dexter & Carpenter to have shipped during the period in question 60,000 tons of coal of the contract quality. In respect to the measure of damages there was no error.

It is further urged that the counterclaim failed to state a cause of action, because it contains no allegation of ability to perform on the part of Dexter & Carpenter. It alleged that the Railways repudiated the contract on September 21, 1920, and that Dexter & Carpenter had performed all the conditions of said contract on its part to be performed, except as excused under the contract. Where the buyer repudiates, there is no necessity for the seller to allege a tender, nor his readiness and willingness to perform. See British, etc., Co. v. Cachar Tea Co., 1923 A. C. 48, 63; Alleghenny Valley Brick Co. v. Raymond, 219 F. 477, 482 (C. C. A. 2); Gray v. Smith, 83 F. 824, 829 (C. C. A. 9). He must, of course, prove that he would have been able to make delivery, for otherwise he will fail in his proof of damages; but there is no necessity for an allegation to this effect.

Complaint is made of a comment by counsel for Dexter & Carpenter, in his summing up to the jury, on the absence of Beijer as a witness. The record shows the following:

"Mr. Haight: If I am wrong, why isn't Mr. Beijer here to set me right?

"Mr. Lange: I object to any such statement, your honor. He is not an employee of ours, and not under our control, and any statement made here as to why we have not produced him is improper.

"The Court: Either side might have taken his testimony.

"Mr. Haight: It is a perfectly fair comment.

"Mr. Lange: That is not a proper comment against the Railways, your honor.

"The Court: Objection overruled.

"Mr. Lange: Exception."

It is to be noted that appellant requested no action by the court, but merely registered an exception when the court overruled his protest. This is not the proper way to preserve the point that opposing counsel has made an improper remark to the jury. Brooklyn Heights R. R. Co. v. Ploxin, 294 F. 68, 70 (C. C. A. 2); Devine v. Chicago M. & St. Paul Ry. Co., 194 F. 861 (C. C. A. 7). But, in any event, we should not regard the incident as constituting reversible error.

We now reach the appellant's most serious grounds of attack upon the judgment, based upon the claim of sovereign immunity. It is asserted that no judgment can be entered against a foreign sovereign government without its consent, and that consent to litigate its own claim against a defendant does not subject it to an affirmative judgment upon a counterclaim. French Republic v. Inland Nav. Co., 263 F. 410 (D. C. Mo.); In re Patteason-McDonald Shipbuilding Co., 293 F. 192 (C. C. A. 9). And see People v. Dennison, 84 N. Y. 272; Kingdom of Roumania v. Guaranty Trust Co., 250 F. 341,...