Wilmoth v. Hamilton

• Decision Date: 06 January 1904
• Docket Number: 18.
• Citation: 127 F. 48
• Parties: WILMOTH v. HAMILTON et al.
• Court: U.S. Court of Appeals — Third Circuit

127 F. 48

WILMOTH v. HAMILTON et al.

No. 18.

United States Court of Appeals, Third Circuit.

January 6, 1904

W. H Ruppel, for plaintiff in error.

Johns McCleave, for defendants in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

The case in the court below was a suit for damages for a breach of contract, by Hamilton & Co., the plaintiffs below citizens of the state of Maryland, against Henry J. Wilmoth defendant below, a citizen of the state of Pennsylvania. The facts disclosed in the record, and in the main undisputed are as follows:

S. M. Hamilton & Co., were coal dealers in Baltimore, Md., selling Salisbury region coal. The plaintiff in error, Wilmoth, was operating a mine in the Salisbury region. Adams, a member of the firm of S. M. Hamilton & Co., on May 2, 1900, had an interview with the said Wilmoth, in Meyersdale, Pa., the home of the said Wilmoth, in relation to the purchase of the output of his mine. Adams testifies that he on that day drove out with Wilmoth to look at the mine and the coal produced from it, and afterwards, on the same day, met Wilmoth at the banking house of one Livengood, where he says the sale was made by Wilmoth. He testifies that:

'Mr. Wilmoth wanted $1.10 for his coal for that year, the entire output, and I wanted to pay not over $1.05, and we finally agreed on $1.10 for the entire output for one year, running from that day to April 1, 1901, that is, running from May 2, 1900, to April 1, 1901; the shipments to begin on the morning of May 3d, the next morning, at $1.10, and we were to get every car he loaded with the exception of possibly one car that he said he wanted for his home use. I said something about drawing the contract up in writing, and he said he didn't see that it was necessary, we both understood each other thoroughly; and he referred to Mr. Livengood, and Mr. Livengood said, yes, he knew both of us, he didn't think there would be any trouble at all; he knew both of us and he thought it would be to both our interests to continue. And the contract was made right then and there in his presence. Q. Mr. Wilmoth agreed to sell and you agreed to buy at that price? A. Yes, sir, conclusively. Q. What happened then? Did you have any further talk with him that day? A. No further talk. It was then about eleven o'clock and I wanted to return to Baltimore, and I had just time to get my satchel and get No. 6, the train on the B. & O. Road which got me to Baltimore that evening at six o'clock.'

Wilmoth does not deny the making of the contract, as thus stated by Adams, but testifies that the sale was conditioned on his not being able to obtain a higher price for the output of his mine. Mr. Livengood, in whose banking office the interview between Adams and Wilmoth took place, confirms Mr. Adams' testimony as to the terms of the contract, says that Mr. Wilmoth referred Adams to him (Livengood) as to his responsibility, and that he said that he (Wilmoth) was a man of his word, and 'I think he would do as he agreed to do. ' He states no condition as to the contract being only binding in case Wilmoth could not get a higher price.

On the next day, May 3d, after Adams returned to Baltimore, he wrote as follows:

'Baltimore, Md., May 3rd, 1900.

'H. J. Wilmoth, Esq., Meyersdale, Pa. Dear Sir:-- We beg to confirm verbal conversation and contract made with you yesterday at Meyersdale by our Mr. Adams, in which you agreed to ship us the entire output of your Wilmoth mine on Salisbury Branch from date until April 1, 1901, at price of one dollar and ten cents ($1.10) per gross ton, f.o.b. cars at mine.

'We understand you can load about two hundred tons daily and will increase same to three hundred tons daily as soon as possible. We will pay for this coal monthly, say, on the 15th inst., or earlier if you desire.

'We write this in duplicate and you can accept same across face of letter and return one copy to us.

'Yours truly,

S. M. Hamilton & Company.'

The offer of this letter in evidence was objected to by counsel for the defendant below, on the ground that it was a self-serving statement by the plaintiff below, not assented to or acknowledged by the defendant. Its admission by the court is the first assignment of error in the record before us. We think it was not improperly admitted by the court below as being a written memorandum of the terms of the contract as understood by Adams, made immediately after its negotiation, not differing at all from his statement thereof in his oral testimony. At all events, we cannot see that, even if its admission should be deemed technically improper, any injury resulted therefrom to the appellant, or that his case was at all prejudiced thereby. On the same day, to wit, May 3, 1900, in which the letter of Hamilton & Co., above referred to, was written, the appellant wrote to Hamilton & Co. as follows:

'Meyersdale, Pa., May 3rd, 1900.

'S. M. Hamilton & Company, Baltimore, Md. Gentlemen:-- In reply to our conversation of yesterday, I am sorry to inform you that I will not ship you any of my coal at the present. Hoping this will not cause you any inconvenience, I remain,

'Yours respectfully,

H. H. Wilmoth.'

No reply was sent to Wilmoth to the letter of Hamilton & Co. of the same date, but there is the testimony of one Mr. Price, representing Niver & Co., a firm of coal dealers in Baltimore, that he had an interview with Wilmoth at Meyersdale on May 3d, the day of his agreement with Mr. Adams, of the firm of Hamilton & Co., and just after the making of the same. Mr. Price testifies that at that interview, Wilmoth told him that he had sold all of his coal to Hamilton & Co. on a year's contract, at the price of $1.15 a ton, with the understanding that if he could get more money for it, the sale was not binding, and that thereupon Mr. Price offered him $1.16 per ton, and on the said May 3d, the contract between Niver & Co. and Wilmoth, for his entire output of coal at $1.16 per ton, was finally made; that a written contract was prepared and executed between Wilmoth and Niver & Co., for the purchase of the coal, to which was added, at Wilmoth's suggestion, the following clause:-- 'It is agreed that in the event of S. M. Hamilton & Company entering suit for the output of this mine, that this agreement shall become null and void. ' Wilmoth, on cross-examination by the plaintiff below, did not deny that he had made this mendacious statement to Price, but said that he spoke jokingly in order to get an offer in advance from Price. This explanation does not, of course, relieve the moral obliquity of Wilmoth's conduct in this respect, and doubtless made an unfavorable impression on the jury as to Wilmoth's integrity. Counsel, therefore, objected to the question put to Wilmoth on cross-examination:-- 'What did you tell Mr. Price about your contract with Mr. Adams? ' The objection was overruled and an exception taken, which is the subject-matter of the fourth assignment of error. Counsel object on the ground that what Wilmoth said to Price was an immaterial matter, and was elicited simply for the purpose of discrediting Wilmoth before the jury; that it was immaterial, because there was no dispute between the parties as to what the contract was, so that it made no difference what the witness said to anybody else in regard to it. It is not correct, however, to say that there was no dispute in regard to what the contract was, since Adams' statement of a definite and conclusive agreement to sell, by Wilmoth to Hamilton & Co., the whole output of his mine, for one year, at $1.10 a ton, differed widely from the statement by Wilmoth, that to this agreement there was attached a condition that it should not be binding, if he, Wilmoth, could get a higher price for the year's output of his mine. What Wilmoth said, therefore, to Price, with relation to this contract, was in every way pertinent and material.

The defendant offered in evidence certain correspondence between Hamilton & Co. and Wilmoth, commencing on July 9th with a telegram from Wilmoth to Hamilton & Co., asking for a meeting on the next Wednesday. The meeting was had, and various verbal negotiations were testified to by Wilmoth, and after an interchange of several letters and telegrams, Wilmoth wrote, on July 25, 1900, to Hamilton & Co.:--

'You can have my coal until April...