Sandusky Cement Co. v. A.R. Hamilton & Co.

• Decision Date: 16 March 1923
• Docket Number: 3741.
• Citation: 287 F. 609
• Parties: SANDUSKY CEMENT CO. v. A. R. HAMILTON & CO.
• Court: U.S. Court of Appeals — Sixth Circuit

287 F. 609

SANDUSKY CEMENT CO. v. A. R. HAMILTON & CO.

No. 3741.

United States Court of Appeals, Sixth Circuit.

March 16, 1923

A. C Dustin, of Cleveland, Ohio (Dustin, McKeehan, Merrick, Arter & Stewart, of Cleveland, Ohio, and Fred J. Perkins, of Freeport, Ohio, on the brief), for plaintiff in error.

Wm. L Day, of Cleveland, Ohio (Joseph R. Conrad, of Pittsburgh Pa., and Day, Day & Wilkin, of Cleveland, Ohio, on the brief), for defendant in error.

See, also, 273 F. 596.

The Sandusky Cement Company brought action for damages for breach of contract. By the terms of this contract, A. R. Hamilton & Co., the defendant agreed to sell and deliver to the plaintiff, at a price stipulated, 5,000 tons per month of Jamison Farmington slack coal during the period beginning April 1, 1920, and ending November 30, 1920, subject to strikes or combination of workmen, accidents, labor shortage, car shortage, and all causes beyond the control of the seller which may result in total or partial suspension of the mines. In case of reduction in the amount of coal produced at the mines or in shipment thereof because of car shortage or other causes mentioned, it was agreed that the seller would discharge its full obligation by delivering each month, coal in proportion of the tonnage actually produced and shipped from its mines to the total tonnage of all of its coal contracts. It was further provided that each month's shipment should be treated as a separate and distinct contract.

The defendant, a Pennsylvania corporation, does not own or operate any coal mine, but is a coal broker dealing generally in the coal market. On the same day the defendant entered into this contract with plaintiff, it made a similar contract for the delivery of this coal with the Jamison Coal & Coke Company. The court held that the defendant was entitled to make the same defenses as the mine owner could make if the contract had been made directly with it. The defendant failed to deliver the amount of coal named in the contract in any one month during the period covered thereby and at the end of that term, November 30, 1920, it had delivered, in the aggregate, but 15,012 tons. At the time these contracts were made the Jamison Coal & Coke Company was the owner of four mines. During the term of this contract it sold mines Nos. 7 and 10. The mines retained, Nos. 8 and 9, had a normal capacity of 40,000 tons per month. Its contracts for the sale and delivery of coal, made before and subsequent to this contract with plaintiff, amounted to about 32,000 tons per month. The defendant claims it was prevented from shipping the capacity of these mines by car shortage, embargoes, and like causes beyond its control; that the plaintiff received, in each month, the full proportion of coal to which it was entitled; that in the months of September, October, and November defendant shipped to plaintiff 2,743 tons of coal in excess of plaintiff's proper percentage or proportions of the production of the mines, and that this extra amount of coal was shipped to plaintiff in pursuance of a contract that plaintiff would accept the same in settlement of the claim made by it; that it had not received its full proportion in April, May and June.

The defendant, in its cross-petition, averred that there was due it from the plaintiff $23,874.50 for coal sold and delivered to plaintiff under this contract and prayed judgment accordingly. The plaintiff admitted this indebtedness and the cause proceeded to trial upon the issue as to damages. The jury allowed the plaintiff $6,104.41 as its damages to be credited upon the amount due from it to the defendant, leaving a net balance, including interest, of $18,128.44 for which judgment was entered against the plaintiff and in favor of the defendant.

While the jury was deliberating, it sent a written communication to the trial court reading as follows: 'There seems to be a division of the jury over your instructions on this point, viz.: Is the Hamilton Company liable under this contract in any one month more than the pro rata share? ' At the time this communication reached the court neither of the parties or their counsel were present. The court was then engaged in the trial of another cause and, without giving counsel an opportunity to be present, sent to the jury the following answer in writing: 'It is not liable in any one month for a greater amount than the amount undelivered in that month. Nor is it liable on account of that undelivered portion than the amount of the pro rata share which you may find plaintiff should have had but did not get.'

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

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

It is insisted on the part of plaintiff in error that the trial court erred to its prejudice in giving these supplementary instructions in the absence of counsel.

The conclusion reached by the Supreme Court in Fillippon v Albion Vein Slate Co., 250 U.S. 76, 81, 39 Sup.Ct. 435, 63 L.Ed. 853, and cases there cited, make it unnecessary to discuss this question in detail. It is sufficient to say that it is not only error to instruct a jury in...