United Press Ass'ns v. National Newspapers Ass'n
| Decision Date | 21 November 1918 |
| Docket Number | 5157. |
| Parties | UNITED PRESS ASS'NS v. NATIONAL NEWSPAPERS ASS'N. |
| Court | U.S. Court of Appeals — Eighth Circuit |
G. B Arnold, of St. Louis, Mo. (Tyson Dines, Jr., of Denver Colo., and J. W. Curts, of Cincinnati, Ohio, on the brief) for plaintiff in error.
Frank M. Lowe, of Kansas City, Mo. (John T. Bottom, of Denver Colo., on the brief), for defendant in error.
Before SANBORN and CARLAND, Circuit Judges, and ELLIOTT, District judge.
This case was before us at a previous term, and a reference to the opinion then rendered is made for a statement of facts. 237 F. 547, 150 C.C.A. 429. On the former writ of error it was decided that upon the facts found by the trial court the plaintiff was entitled to recover future profits. This result was reached by deciding that on the facts found the plaintiff had not waived its right to treat the contract between the parties at an end on March 13, 1911. This is the law of the case; the relevant facts remaining the same. The evidence whereby the defendant sought to justify its breach of the contract was not considered by us when the case was here before, as such a defense had not then been pleaded. By an amendment which is known in the record as the third defense of defendants' second amended answer, the defense of justification is pleaded; but, as the jury found in favor of the plaintiff on that issue, any error committed by the court in submitting to the jury the evidence relating to justification was not prejudicial, and therefore no cause for reversal.
The facts upon which we based our decision when the case was here before consisted largely of letters and telegrams, and this evidence was the same on the second trial of the case as on the first. Notwithstanding this, the trial court submitted the questions which we had decided to the jury. This was error, but as the jury found for the plaintiff it was error without prejudice, and not cause for reversal.
It is assigned as error that the trial court abused its discretion in denying the motion for a new trial. Ordinarily the ruling of the trial court on motion for a new trial is not subject to review, the motion being addressed to the sound discretion of the trial court. There is, however, an exception to this rule in cases where the trial court has, as the law terms it, abused its discretion. Pugh v. Bluff City Excursion Co., 177 F. 399, 101 C.C.A. 403; Vallery v. Glenwood Irrigation Co., 248 F. 483, 160 C.C.A. 493.
On the question of damages there was an item of $875 conceded to be due from defendant to plaintiff for services rendered under the contract. This sum, with interest, amounted to $1,259. The jury were instructed to return a verdict for this amount in favor of the plaintiff. The other damages claimed were for future profits, had the contract been performed by defendant. The jury retired for deliberation on their verdict June 6, 1917. On the next day they returned their verdict in favor of the plaintiff for $1,259, as directed by the court, and assessed damages for future profits at $1. This verdict, being manifestly inconsistent with the evidence and charge of the court, was not received, and the court, at the request of counsel for both parties, resubmitted the case to the jury in the following language:
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