HUDMON et al. v. CUYAS, 57 F. 355

McCORMICK, Circuit Judge. In October and November, 1890, the defendant in error, a citizen of Georgia, and resident of Savannah, contracted with plaintiffs in error, citizens of Alabama, for 300 bales of cotton, to be of a named grade and price, and to be delivered at Savannah, Ga., f. o. b., under rules of the Savannah hoard of trade. The cotton was shipped by rail to Savannah, samples, weights, marks, etc., sent defendant in error, with railroad receipt, who thereupon paid the price, amounting to $15,900.95. Sixty-five hales of the cotton miscarried, and were paid for by the railroad.

Two hundred and thirty-five bales were received, but proved to be so far below the grade and value specified in the contract and samples sent that defendant in error declined to export them, and, after due notice to plaintiffs in error and to their broker, through whom the contract had been made, proceeded to replace the 300 bales, and had these 235 bales sold in Savannah for account of defendant in error. In his account, based on those transactions, the defendant in error charges: “Dec. 8. Cost of replacing 300 bales, * * * §300.00. Dec. 28.

Time and expense attending to the resale of 235 bales of cotton, * * * §117.50.” This account claims a balance due defendant in error January 31, 1891, §2,694.59. April 13, 1891, defendant in error commenced his action against the plaintiffs in error in (he United States circuit court for the middle district of Alabama, claiming in his complaint this balance of §2,694.59 in three common counts:

(1) As due on account; (2) balance due for breach of a contract, (setting out contract;) (3) money received to use of plaintiff; with a fourth count, as amended, claiming §16,000, (setting out contract and breach with careful detail.) To the complaint as amended the defendants plead:

(1) They did not promise as charged; (2) they are not guilty as charged; wirh these additional pleas: "l3> Ami defendants, as further defense to tlie action of the plaintiff, say ilim ar. the time said action was commenced the plaintiff was indebted to them in (he sum of 8100, for 1his, that in the month of November, 1890, the defendants sold to the plaintiff one hundred bales of middling cotton, to be delivered f. o. 1).

Savannah, for export in the state of Georgia, at nine and nine-sixteenths cents per pound, which cotton was tendered by the defendants to the plaintiff, and the plaintiff refused to receive and pay for the same, and cotton declined in price, and defendants were compelled to sell such cotton at nine and seven-sixteenths cents per pound, to their damage as aforesaid. ‘•(•

I) And defendants, for further answer to the said complaint as amended, say that the three hundred bales of cotton referred to and mentioned in the said complaint as amended wore sold to the plaintiff by defendants on condition 1hat all differences as to grade and quality of tlie same should be settled by arbitration in 1lie city of Liverpool, England, and plaintiff lias never demanded of the defendants that, (lie said differences as to the grade and quality thereof should be settled by arbitration in the city of Liverpool, England, and that such differences, if any there were, were never settled by arbitra tion.

"(">) And the defendants, for further answer to the said complaint as amended, say that the three hundred hales of cotton referred to and mentioned in the said complaint as amended were sold by the defendants to the plaintiff on condition that all differences as to grade and quality of tlie same should be settled by arbitration in tlie city of Liverpool, England, and it was agreed in the contract for the sale and purchase thereof that no action should be maintainable for any difference in grade and quality of the said cotton until after Hie award of such arbitration, and plaintiff has never demanded of the defendants that such differences as to grade and quality of said cotton should ho settled by arbitration in the city of Liverpool, England, and that: such differences, if any there were, were never settled by arbitration.” Plaintiff (below) demurred to plea No. 3 on the grounds:

(1) That said plea fails to allege a tender oí the cotton by the defendants.

(2) It fails to allege an unjustifiable refusal to accept the cotton on part of plaintiff. To plea No. 4: “(O There is no allegation in the plea that all the counts of the complaint are founded on the contract set out. in the plea.

(2) The plea is not ah answer to the whole complaint.

(3) The plea fails to allege that it was one of the terms of the alleged contract that no suit should he brought until after arbitration had.

(4) Said plea fails to show that the condition therein set forth was such as to prevent the maintenance of a suit

(5) The alleged agreement to arbitrate, set forth in said plea, could not prevent plaintiff from bringing or maintaining this suit.” Plaintiff demurred to the fifth plea, but his demurrer was overruled as to that plea. The demurrers to the third and fourth pleas were sustained. The sustaining of these demurrers is assigned as error. The fourth plea was bad, and the demurrer thereto was properly sustained, because said plea did not show that, under the agreement, an arbitration in Liverpool as to all differences as to grade and quality was a condition precedent to bringing suit. Hamilton v. Liverpool, etc., Ins.

Co., 136 U. S. 255, 10 Sup. Ct. Rep. 945; Hamilton v. Home Ins. Co., 137 U. S. 385, 11 Sup. Ct. Rep. 133. In addition, we may notice that the ruling complained of was without injury to the plaintiffs in error because said fourth plea is substantially embraced in the fifth plea, with an addition, which fifth plea was sustained, and let in all the proof. As to the third amended plea, we consider that if that plea was good, and the sustaining of the demurrer to it erroneous, the record shows that it was error without injury in this case.

The office of such a plea is to let in the proof of defensive matter, and this record shows that under the general issues, or in explanation and support of plaintiffs’ account, either all the dealings of the parties referred to in this third plea were shown by the proof embraced in the bill of exceptions, or in other proof which the bill says was in the case, or at least so much was put in by plaintiffs as would have admitted and called for all the proof the defendant may have had on that subject, and on this point no exception is taken to the charge of the court or to the refusing of a proper request for a charge.

It is urged that the court erred in charging the jury “substantially that the plaintiff was entitled to compensation for his timé and expenses in replacing 235 bales of cotton bought from defendants, which he had rejected, if said 235 bales of cotton did not come up to the grade at which plaintiff purchased the same.” After a careful examination of the record, we are unable to find the evidence supporting, or tending to support, the issue to which this charge appears to be addressed.

From all that is furnished us, it appears that this substantial charge complained of is merely an abstract proposition, the giving of which may or may not have misled the jury, according to the circumstances of the trial, not shown us by the record brought up. That record say's “there is other evidence in the case.” . In Jones V. Buckell, 104 U.

S. 554, it is said: “With no issue made directly "by the pleading, and no evidence set forth or referred to in the bill of exceptions, showing the materiality of the charge complained of, the case presents to us only an abstract proposition of law. which may or may not have been stated by the court in a way to be injurious to the plaintiffs in error. Such a proposition we are not required to consider.” And, again, that court says, in Railroad Co. v. Madison, 123 U. S. 542, 8 Sup. Ct.

Rep. 246: "The record, ¡is it. comes to ns, presents only abstract questions of law, which may or may not have been ruled in a way to affect the defendant injuriously.

It has long been settled that such questions will not be considered here on a writ of error, unless it appears from the bill of exceptions, or otherwise in the record, that the facts were such as to make them material to (lie issue which was tried.” The ¡recount declared on embraces no item for “compensation for his time and expenses in replacing- two hundred and thirty-five bales of cotton, bought from defendants, and which he had rejected.” If it did, and the charge was thus relieved of its abstract features, it would seem that there may be exceptions to the general rule that the measure of damages on the seller’s failure to deliver goods according to contract is the difference between the contract price and (lie market price of the goods at the time when, and the place where, they should have been delivered; and that when goods are sold by sample, with a warranty as to quality, and delivery is made of an inferior quality, necessitating a rejection, a return, or a reselling of the goods, and a replacing of the special quality contracted for, the cost of reselling and replacing- is necessary and natural damage, as much to be considered as difference in price.

Hee 2 Benj. Hales, (Kerr’s Ed. 1888,) § 1260 et seq. In Penn v. Smith, 93 Ala. 476, 9 South. Rep. 609, Smith had shipped from Tennessee to Alabama flour to Penn, on order specifying brand and price, which Penn refused to take. In an action for damages Smith claimed as part of his damage compensation for time and expense of the member of his firm who came to Opelika, and made resale there of the goods rejected, and the supreme court of Alabama held that he could not recover for the time and expense of the member of the firm who came to Opelika and made the sale. In Barker v.

Mann, 5 Bush, 672, Baker, a merchant in Louisville, Ky., sold, in Louisville, and to be there delivered to Mann, a merchant doing business in Brownsville, Tenn., certain goods to be shipped to Brownsville, to be used in Mann’s business. Baker failed to send the goods, and Mann brought his action for damages for the nondelivery of the' goods.

The supreme court of Kentucky found in that case that the most difficult question was as to the measure of damages, and, after reviewing a number of English and American cases, say: “In this case ¡qipeHants promptly Informed the appellees of their intention to abandon iho sale, and there is no reason assigned or appearing why they could not supply the same articles within a few days from other vendors in the Louisville market.

Had they done so, their necessary expense, together with their lime and trouble, * * * should be regarded os-elements making up their damages. * * * It is difficult to lay down ¡my universa t rule, for each case must, at least to a great extent, depend upon its own peculiar facts.” It is to bo observed that the appellants did not demur to appellee’s complaint, and did not object to the introduction of evideuce on the ground that there was no plea to admit it.

On consideration of the case as brought up to us, we find no error in the rulings of the circuit court requiring a reversal of the judgment, and it is therefore affirmed.