L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.

• Decision Date: 01 March 1904
• Docket Number: 1,298.
• Citation: 128 F. 343
• Parties: BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO.
• Court: U.S. Court of Appeals — Fifth Circuit

128 F. 343

BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO.

No. 1,298.

United States Court of Appeals, Fifth Circuit.

March 1, 1904

H Bisbee and George C. Bedell, for appellant.

R. H Liggett, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

The original transactions and the resulting controversies between the parties to this suit, and to which this suit is somewhat related, have been, in different phases, several times before this court, and our reported decisions may be found in 92 F 864, 35 C.C.A. 59; 93 F. 765, 35 C.C.A. 590; 109 F. 411; and 121 F. 233. This case was before us on appeal at our November term, 1901, and our opinions disposing of the case on that appeal, announced May 20, 1902, are reported in 116 F. 1. The averments of the bill in this case are briefly, but sufficiently, set out in the opinion of this court on the former appeal. Therein at also appears that the appellee had submitted a demurrer, specifying grounds, the first of which was, 'Because the said bill does not set up such facts as entitled the complainant to any relief in a court of equity against this defendant,' and that on the hearing of the demurrer the Circuit Court 'ordered that said demurrer be, and the same is hereby, sustained upon the ground alleged therein; and, it further appearing that the insufficiency of the bill is such that it cannot be cured by amendment, it is ordered that it be dismissed. ' This decree of the Circuit Court was reversed by this court, and the cause was remanded to that court, with direction to overrule the demurrer. It will be seen, with reference to our opinion announcing the result just stated, that it was to the effect that the facts averred in the bill entitled the plaintiff to the relief prayed for. Agreeably to the mandate of this court, the Circuit Court overruled the demurrer, and the defendant answered, and much proof was taken before an examiner, and the case came on for trial. The learned judge of the Circuit Court, in announcing his decision, discussed at some length the twenty-ninth article of the bill, but does not formulate his finding in reference to it in such way as favors quotation. After that discussion, he refers to the opinion of this court on the former appeal, and says:

'One important point in the decision of the Circuit Court of Appeals in overruling the demurrer herein seems to be based upon the allegations of the bill that the amount to which the defendant was entitled was unquestioned and conclusively proven. This was the only strongly contested point in the trial below, and the amount directed to be remitted was approximately the amount due under the measures of damages which had been determined by the trial court for the time for which the question had been withdrawn from the jury, and has since been sustained by the Court of Appeals, while the amount which the complainant herein demands was an amount which on every ruling of the court was refused and denied, and which in the entire litigation, so far as shown, was not proven. The court therefore finds that the allegations of the twenty-third and twenty-fourth articles of complainant's bill are not sustained, and the measures of damages found and determined in that suit has been fully adjudicated and determined upon appeal. It also finds that there was no undertaking of the court to change the measure of damages which had been given to the jury, but only to correct the error which possibly may have been committed in instructing the jury that payment and settlement between the parties for the logs up to the 15th of August, 1897, was final; that such order could in no way adjudicate any rights between the parties; and that no adjudication of the amount claimed in the bill was made.'

After a full and very careful examination of all of the evidence brought up on this appeal, we find ourselves unable to concur in the findings of the Circuit Court as just above expressed. The twenty-third article of the bill charged that, on the trial at law to which the bill referred, the court, at the request of the defendant therein, instructed the jury that the difference between the contract price of the logs contracted to be delivered, and the market price of the logs...