Luray Supply Co. v. Franklin Sugar Refining Co.
| Decision Date | 17 April 1925 |
| Docket Number | No. 2306.,2306. |
| Citation | 6 F.2d 214 |
| Parties | LURAY SUPPLY CO., Inc., v. FRANKLIN SUGAR REFINING CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John T. Harris and D. O. Dechert, both of Harrisonburg, Va. (W. V. Ford, of Luray, Va., on the brief), for plaintiff in error.
Thomas B. Gay, of Richmond, Va. (Irvin G. Craig, of Richmond, Va., on the brief), for defendant in error.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
This case grows out of sales of sugar in May and June, 1920. The defendant in error, the Franklin Sugar Refining Company, in the court below, sued the Luray Supply Co., Inc., the plaintiff in error at this bar. For brevity they will be referred to as the buyer and seller, respectively.
The action, as brought and tried in the District Court, was upon five separate contracts of different dates, in May and June of 1920, for the sale and purchase of various lots of sugars. Upon two of these agreements the court instructed a verdict for the seller. The other three it left to the judgment of the jury. Upon two of these the latter found for the seller, and upon the remaining one for the buyer, which moved for a new trial. The court was of opinion that the verdict upon two of these contracts, one in favor of the buyer, and the other in favor of the seller, could not stand as in its view of the evidence, they were mutually inconsistent. The buyer urged that under such circumstances it was entitled to a new trial upon all five, but the court held that so drastic an order was unnecessary and would involve a waste of time and money in retrying issues which had been fairly presented and passed upon. To this conclusion of the court error was assigned. No authority in support of that assignment has been cited. We have thought it unnecessary to inquire whether any can be found. The new trial ordered as to the two contracts has been had. It resulted in a verdict and judgment for the buyer, which we have affirmed for reasons stated in an opinion filed simultaneously with this. 6 F.(2d) 218. The eminently sensible course taken by the District Court has hurt nobody.
There are 43 other assignments of error, 27 of which relate to rulings upon the admission or rejection of testimony, and one to the court's action in striking out a special plea of the buyer that the seller was a foreign corporation and had not been admitted to do business in Virginia. The remaining 15 assail the action of the court in giving or refusing instructions. The buyer's briefs make no direct reference by number to any of these assignments. We cannot discover that a word is said about many of them, and, so far as we can recall, counsel in argument at this bar were equally silent upon them. The legal propositions upon which others are based were stressed in both the printed and oral discussion of the case, but the task was left to us to apply what was said to the particular assignment or assignments to which it had reference. Under such circumstances, there is always danger that we may overlook something which counsel regards of moment. The risk is obviously greater when the assignments are as numerous as they are in this case, and it is clear that some of them have been tacitly, although not expressly, abandoned. Such seems to have been the fate of all the 27 of them, having reference to testimony, except the two numbered 31 and 32, respectively. At all events, we do not see that the buyer was entitled to complain of any of the rulings to which the other 25 refer.
No attempt was made to show us that the court erred in holding the seller was entitled to sue in a court of the United States, sitting in Virginia. We are satisfied that it was. It is ably argued that the court should have granted, instead of refusing, some of the instructions asked for by the buyer. Into that question it is unnecessary for us to go. As to two of the three contracts before us, the court instructed a verdict for the seller. It left the third to the jury, because it admitted certain evidence which at the time it thought had raised an issue of fact as to that particular contract. When, in connection with the motion for a new trial, it had occasion to reconsider, at leisure, the rulings it had made, it concluded it had erred in admitting the evidence now being passed upon. Had that been excluded, the court thought it would have been bound to instruct a verdict for the seller on that contract also. If it was right, as it will presently appear we think it was, it should have refused all the instructions requested by the buyer, whether as an abstract legal proposition they were, or were not, sound.
The case, therefore, resolves itself into two questions — First, was the seller entitled to an instructed verdict on the three contracts? and, second, was there any prejudicial error in the court's excluding testimony referred to in the thirty-first and thirty-second assignments of error? We will consider these in the reverse order to that in which we have stated them. The contracts in question, as the court construed them, called for delivery in July or as soon thereafter as possible. The deliveries were not made or tendered until August. The sellers attempted to show that earlier deliveries were impossible because of strikes of switchmen and of stevedores and because of an insufficient car supply. The buyer thereupon offered to prove that on or about June 11th the seller had contracted to sell a carload of sugar to the Harrisonburg Grocery Company, for delivery as soon as possible, and that the sugar was delivered under the contract on July 27th. On May 30th the seller had confirmed the two contracts upon which the court instructed a verdict for it. By their terms, delivery was to be made in July, or as soon as possible thereafter. The court held that, after the seller had made them, it had the right to agree with others to deliver in June, up to its full capacity to refine and ship, as that might then be reasonably anticipated, unless there was something in the situation which suggested that by so doing it was subjecting the buyer to an unreasonable risk of delay in delivery. The court thought that the bald fact that a contract accepted on June 11th for shipment as soon as possible was delivered on July 27th was not sufficient to support an inference that the seller had treated the buyer unfairly in failing to ship to it until August 19th and 23d, respectively. We are of like mind.
The evidence which the learned court below subsequently concluded had been wrongly admitted concerned a shipment of sugars to the Boyer Grocery Company, of Woodstock, Va., near a junction point of the Baltimore & Ohio and the Southern Railroads. The contract in pursuance of which it was made was confirmed by the seller on June 8, 1920. The confirmation as delivered to the Boyer Company was silent as to the date of delivery. The buyer therefore contends that it must be conclusively presumed that the contract was nothing more than one for delivery within a reasonable time. It bases this contention, in part, upon the evidence that the broker who had...
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