PHILIP SCHNEIDER BREWING CO. v. AMERICAN ICE-MACH. CO., 77 F. 138

CALDWELL, Circuit Judge, after stating tbe case as above, delivered the opinion of the court. The second, third, fourth, fifth, sixth, eighth, ninth, tenth, and eleventh assignments of error rest on the ruling of the circuit court in sustaining objections to interrogatories propounded to the witnesses by the plaintiff in error, intended to elicit the witnesses’ opinions or knowledge as to whether there were any defects in the engine and the ammonia compressor.

The objection to these questions was sustained by the circuit court on the ground that the defendant, in its answer, pointed out specially the particular parts of the ice machine which it alleged were defective, and that these specifications did nbt include the engine or compressor, and that the inquiry should, therefore, be confined to those parts of the machinery and apparatus to which the defendant had specifically objected in its answer.

The first contention of the plaintiff in error in support of these assignments is that the plaintiff first introduced evidence relating to the engine and compressor, and that the defendant was entitled to-rebut such evidence, even though it be conceded to be immaterial and irrelevant under the state of the pleadings. The rule here invoked has no application to this case. The plaintiff introduced no testimony in relation to the engine and compressor. Mr.

Maynard, the president of the ice-machine company, was called as a witness by the plaintiff, and on cross-examination ‘by the defendant “described at length, from a drawing or plan, the general construction and operating of the ice-making apparatus furnished by the plaintiff, and stated that, among other things, such ice-making apparatus consisted of a steam engine, and ammonia compressor, galvanized iron cans, etc., all belonging to the one system and constituting one whole; and that the plant was first class throughout, and all its parts were constructed in accordance with the latest and best practice, according to the contract with defendant; * * that apparatus erected will manufacture more ice than guarantied; that plaintiff had done its duty, and wanted payment due.” These statements of the witness were brought out in his cross-examination by tbe defendant.

The defendant cannot call out immaterial and irrelevant testimony on the cross-examination of a plaintiff’s witness, and then introduce testimony to rebut the irrelevant-matter he himself called out. Moreover, the mere formal proof that the ice machine complied with the contract would not, under the state of the pleadings, authorize the defendant to go into matters irrelevant to the issues made by the pleadings.

It is next insisted that the pleadings presented an issue respecting not only the parts specifically named and alleged in the answer to be defective, but respecting the sufficiency of the whole plant, and every part of it. In answer to the general averment in the complaint that the “plaintiff has fully complied with and performed all and singular tbe terms and conditions” of the contract on its part, the answer “denies that the plaintiff has fully complied with and performed all and singular the terms and conditions of said contract.” This denial is clearly a negative pregnant, and raised no issue. James v.

McPhee. 9 Colo. 491, 13 Pac. 535; Bliss, Code Pl. § 332. This denial would be literally true if the plaintiff had failed to perform the contract in some trivial or immaterial respect, whereas a substantial compliance with the contract would entitle the plaintiff to recover; and this denial does not negative the fact that there was such a compliance. But we do not rest our decision upon this ground.

It may be assumed that this clause of the answer, standing alone, was a good general denial, and that, if the defendant had said nothing more in its answer, it would have raised an issue as to the sufficiency of every part of the plant. But the defendant was not content to rest on this general denial. It afterwards chose to make its denial specific, and to point out with great particularity the parts of the ice machine which it claimed were defective.

The dubious general denial is followed up by this averment: “Defendant alleges that the plaintiff failed and neglected to perform the contract in the complaint set forth, according to the terms thqreof, in the following particulars.” Here follows a particular specification of the parts of the machine alleged to be defective which we have set out in full in the statement. The counterclaim set up in the defendant’s answer is based on the same alleged defects in particular parts of the machine.

Neither in the specific denials nor in the statement of the counterclaim is there any mention of the engine or compressor, or any hint or suggestion that: either was defective. Under this state of the pleadings, the plaintiff was not required to move for a more specific statement, or a bill of particulars. If such a motion had been made, it must have been overruled upon the ground that the defendant had stated with great particularity the parts of the machine which it claimed to be defective. The plaintiff had a right to rely upon this specification of defects.

By reference to the contract it will be seen that the manufacture of ice requires an extensive and elaborate machine, composed of numerous parts. The defendant had been operating the machine for some time before it filed its answer. It had knowledge, therefore, of all its defects, large and small; and when it undertook to particularly specify ■ them the presumption is that it specified them all, and the plaintiff had a right to rely upon this presumption.

Section 56 of the Code of Colorado provides that “the answer of the defendant shall contain: First, a general or specific denial of each material allegation in the complaint intended to be controverted by the defendant. * * *” It will be observed that the Code does not say that the denial may be both general and specific. The Code contemplates that it will be the one or the other; and, when it is both, the general denial raises no issue outside of the specific denials. Reed v. Hayt, 51 N. Y. Super. Ct. 121. This rule is specially' applicable to this case. The ice machine was composed of hundreds of parts.

After using the machine for some time, and having had ample opportunity to test its merits and become advised of its defects, if it had any, the defendant, in its answer, undertook to point out, and did point out, specifically, the parts of the machine which it alleged to be defective, and wherein they were defective. This was proper pleading in a case of this character. The plaintiff was thus advised, as was its right, of the precise issues it had to meet. It was not required to come prepared to meet any others.

In this state of the pleadings it would be a great hardship on the plaintiff to require it to meet charges of defects in other parts of the machine, made for the first time at the trial. The surprise and hardship would be greater than it is in ordinary cases, because the evidence to meet the new charges would, in a great measure, have to be of a scientific and expert character; for a witness who might be thoroughly qualified to testify regarding the sufficiency of the freezing tank might know very little about the ammonia compressor or the engine. In Minor v.

Bank, 1 Pet. 46, 67, the supreme court, speaking by Mr. Justice Story, said: “There is no question that the replication is not drawn with technical accuracy and correctness; and, if the plea be a good plea of general performance, it is clear, both upon principle and authority, that a special breach ought to have been assigned in the replication; and the objection, if insisted’upon by way of demurrer, for that’cause, would have been insuperable.

The reasón is that the law requires every issue to be founded upon some certain points; that the parties may come prepared’ with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters.” A glance at the contract between the parties discloses how extremely indefinite would be an issue based on a negative pregnant averment that it had not been “fully” complied with. The learned counsel for the plaintiff in error, in their brief, after calling our attention to

section 66 of the Colorado Code, say: “Perfordiance was pleaded in this case substantially pursuant to the above provision of the Code. That performance was controverted. Plaintiff must, therefore, have.established the fact showing such performance.” In Kahnweiler v. Insurance Co., 32 U. S. App. 230, 14 C. C. A. 485, and 67 Fed. 483, we had occasion to consider a provision of the Kansas Code identical with

section 66 of the Colorado Code, and we there said: “In pleading- the performance of a condition precedent under the code system, it is not necessary, as it was at common law, to state the facts showing such performance, but it is sufficient to state generally ‘that the party duly performed all the conditions on his part; and, if such allegations be controverted, the parly pleading must establish on the trial the facts showing such performance.’ Gen. St. Kan. 1889, par. 4205.

The policy in suit contains the usual conditions in such policies with reference to notice and proofs of loss, etc., and declares that, ‘until such proofs, plans, and specifications, declarations, and certificates are produced by the claimant, and such examinations and arbitrations permitted and had, the loss shall not be payable.’ The plaintiff’s complaint made the policy in suit a part thereof, and contained the averment that the plaintiff had ‘performed all the conditions of the said policy on their part.’ The only answer to this allegation of the complaint was a general denial.

Assuming for the present that the obtaining of an award was a condition precedent to the right of the plaintiffs to maintain their action, did this general denial put in issue the allegation that: the plaintiffs had complied with that condition of the policy? In other words,' was the general allegation of due performance properly ‘controverted,’ within the meaning of the Kansas Code? We think it is clear that it was not.

If the defendant intended to rely upon the nonperformance by the plaintiffs of one or more of the numerous conditions of 1he policy, it should have pointed them out specifically, and alleged their breach. In no other way could it be known to the parties or the court what issues were to he tried. Under the Code, when a defendant relies upon a breach of a condition precedent in a contract as an excuse for not performing the contract on his part, he must set out specifically the condition and the breach, so that the plaintiff and 1he court will be advised of tire issue to be tried.

Bliss, Code Pl. 3d Ed.) § 356a; Nash, Pl. pp. 300, 302, 782. In the case of Preston v. Roberts, 12 Rush, 570, 583, the court of appeals of Kentucky said: ‘The plaintiff being expressly authorized to plead in that manner [general performance of conditions pree.dent], the defendant must, if he relies upon .the fact that auy of the conditions precedent has not been performed, specify the particulars in which the plaintiff has failed (Newm. Pl. & Prac. 510, 511; Railroad Co. v. Leavell, 16 B.

Mon. 362). thus confining- the issue to be tried to such particular condition or conditions precodent as the defendant may indicate as unperformed.’ See, to the same effect, Gridler v. Bank, 12 Bush, 333. The cases of Hamilton v. Insurance Co., 136 U. S. 242, 10 Sup. Ct. 945, and Hamilton v. Insurance Co., 137 U. S. 370, 11 Sup. Ct. 133, arose in a code state, and in these cases the defendant set up the condition precedent relied upon as a defense, and specifically alleged its breach, and this is believed to be the uniform practice in all code states.

It is also the practice in England, under a statute which, like our codes, permits a general averment of the performance of conditions precedent by the plaintiff. Under that statute, where such a general averment is made in the declaration, any condition precedent, the performance or occurrence of which is to be contested, must be distinctly specified, and its .performance negatived in the defendant’s answer. For English cases illustrating the rule, see Glenn v. Leith, 22 Eng. Law & Eq. 489; Graves v. Legg, 25 Eng. Law & Eq. 552.

In the case last cited, Lord Chief Baron Pollock observes: ‘The declaration having averred, according to the, fifty-seventh

section of the common-law procedure act, the performance of conditions precedent generally, the defendants proceeded in their pleas to specify this cond tion of declaring the names of the vessels as one of the breaches of which they insist.’ ” If the contention of counsel for the plaintiff in error that

section 66 of the Colorado Code is applicable to the case at bar is sound, then the rule in the case last cited applies; and, if the defendant intended to rely upon the fact ihat a few of the numerous parts of the ice machine were defective, it should have pointed them out specifically, as was done. The nature of the contract in suit and of the defense brings the case within the reason of the rule laid down in Kahnweiler v. Insurance Co., supra.

Waiving any consideration of the further question whether the exceptions to the ruling of the court sustaining the objection to the questions propounded to the witnesses by the defendant are not fatally defective for not showing what the excluded testimony was intended to be, and that it was material (Ladd v. Mining Co., 32 U. S. App. 93, 14 C. C. A. 246, and note, and 66 Fed. 880; rule 11 of this court, — 11 C. C. A. cii., 47 Fed. vi.), it is apparent that the reason given by the court for excluding the questions was sound.

A witness was asked by the defendant what, from his “experience as an engineer, and his knowledge of the working of the plant furnished by the plaintiff, with the defects which the witness had stated he was aware of, what would the plant, in his opinion, be worth.” The court sustained an objection to this question, and this ruling is assigned for error. The plaintiff is not seeking to recover on a quantum meruit. The action was founded on a contract which fixed the price to be paid for the ice plant, and the suit was to recover that price, less the payments which had been made.

The defense was that certain specified parts of the ice plant were defective. On this state of, the pleadings the witness’ opinion as to the value of the ice plant as a whole, after allowing for the defects within his knowledge, was irrelevant and incompetent. Wentworth v. Dows, 117 Mass. 14. It was not a material error to permit a witness for the plaintiff to state that less ice would be formed with a 16 gauge can than with one of 18 gauge. Exceptions were taken to portions of the court’s charge.

The court told the jury: “As T stated to you, the second cause of action relates to the temperators, which-were furnished at the price of twelve hundred dollars, as to which no complaint whatever has been made; that is, there is no defense made as to them. The filter which was distinguished from the filters mentioned in the contract was an independent instrument of the price of $250, of which it is said that the defendant had paid all but $57.

The total cost of these instruments, the temperators and filter, was $1,450, and the defendant paid a cheek for $1,400, the discount upon which was $7, in respect to exchange, leaving $1,393 paid on account of these instruments, so that there was $57 left due upon the filter.” The contention in this court is that this paragraph of the charge misstated certain facts. It is said it is not true that as to the temperators “no complaint whatever has been made; that is, there is no defense whatever made as to them.” The charge stated the exact truth. No complaint was made that they were defective.

The plaintiff claimed, as stated in the charge, that there was $57 due on the purchase of the temperators and the filter, and the defendant claimed they had been paid for in full, and complaint is made in this exception that the court said “that there was $57 left due upon the filter.” Payments were made from time to time by the defendant on its various purchases, and there was some contention as to the proper application of these payments. Applying them as the plaintiff did, it left $57 due on the second cause of action.

If the payments were applied to extinguish the $57, then the credits on the oilier accounts would be reduced by that sum. The jury found spedally that there was $57 due the plaintiff on the second cause of action, which included the filter. But, if the court had erred in its statement of fact that there was $57 due on the filter, the judgment should not be reversed or modified on account of the error. The paragraph of the charge excepted to contains no proposition of law, but some 10 statements of fact, of which the statement that there was $57 due upon the filter is the last.

The exception was to the whole paragraph.

If the exception is good, it is manifest it would be equally open to the plaintiff in error to contend here that it was not true that the second cause of action related to the temperators, or that they were furnished at the price of $1,200, or that no complaint had been made as to them, or that the filter was not distinguished from the filters mentioned in the contract, or that the price of it was $250, or that it was said “that the defendant had paid all but $57,” or that the total cost of these instruments was $1,450, or that the defendant had paid thereon a check for $1,400, or that the discount upon the cheek for exchange was $7, or that that left $3,893 paid on account of these instruments.

It is obvious that a general exception to this long statement of facts furnished to the lower court no clew whatever as to the particular fact that was regarded as erroneous or objectionable, and afforded it no opportunity to correct any inadvertent error in the statement of facts into which it might have fallen, and wliich would doubtless have been corrected on the instant on being pointed out. The rule on ibis subject is tvell settled. In Railway Co. v. Jurey, 111 U. S. 584, 596, 4 Sup.

Ct. 566, 571, the supreme court said: “The last assignment of error which we shall notice is based on the charge of the court to the effect that ‘the measure of damages would be the value of the cotton in New Orleans, where it was to have been delivered, together with inlemst on said sum at eight per cent, per annum from the time when the cotton ought to have been delivered.’ The error alleged is that the rate of interest should have been placed at five per cent., which is the legal rate in Louisiana, where the contract was to be performed, and not at eight per cent., which was the legal rate in Alabama, «'here the contract was made.

Conceding that the charge in respect to lite rate of inteiest was erroneous, the judgment should not be reversed on account of the error. The charge contained at least two propositions: First, that the measure of damages was ihe value of the cotton in New Orleans, with interest: from the time when the cotton sliotild have been delivered; second, that the rate of interest should be eight per cent. It is not disputed that the first proposition was correct. But the exception to the charge was general. It was, therefore, ineffectual.

It should have pointed out to the court the precise part of the charge that was objected to. *Tlie rule is that the matter of exception shall be so brought to the attention of ihe court before the retirement of the jury to make up their verdict, as to enable the judge to correct any error, if there be any, in his instructions to them.’ Jacobson v. State, 55 Ala. 151. ‘When an exception is reserved to a charge which contains two or more distinct or separable propositions, it is the duty of counsel to direct the attention of the court to the precise point of objection.’ Railroad Co. v.

Jones, 56 Ala. 507.” The doctrine of this case has been repeatedly affirmed by that court and by numerous cases in this court. Price v. Pankhurst, 10 U. S. App. 497, 3 C. C. A. 551, and 53 Fed. 312; McClellan v. Pyeatt, 4 U. S. App. 319, 1 C. C. A. 613, and 50 Fed. 686.

Where the exception is not to a statement of the rule of law, but only to an error in the statement of facts, such as an error in dates or amounts, or in the statement of what the pleadings contain, or to the absence of some qualifying word or phrase in the definition of a rule of law, the exception should point out distinctly the very error or mistake complained of. Such errors frequently occur, but always from inadvertence, and often from clerical misprision; and, when called to the attention of the court, as they should be, are always corrected.

An exception to tbe whole charge or any considerable portion of it affords not the slightest clue to such errors as we have mentioned, and affords no.opportunity for their correction by the trial judge. An observance of the proper rule serves to correct errors of fact as well as hasty, inaccurate, or misleading expressions in the charge, and removes any ground for exception, and prevents further litigation on immaterial matters. Under this well-settled rule, the exception we are considering was too broad, and goes for nothing. The exceptions to other parts of the charge are subject to the same objection.

To a portion of the charge comprising two-thirds of a printed page, and containing several propositions of law, the correctness of some of which is not challenged, there wás a general exception. Waiving the objection of the sufficiency of the exception, the errors assigned upon this part of the charge have no merit.

It said it was error for the court to tell the jury that: “X am inclined, in looking over the whole case, to the opinion that the defendant cannot, toe entitled to anything more than to recoup — as we express it — out of the sum his damages in respect to the defects of the machine and the losses he has sustained. That the defendant may recoup from the plaintiff out of the sum claimed by him on the machine $5,030.31, the damage which he may have sustained in respect to these defects. * * *” On a different state of facts it might have been error not to submit to the jury the counterclaim.

The clause of the instructions quoted was based on the court’s view of the evidence, and that it was a sound view is demonstrated by the verdict of the jury, which allowed the defendant nothing by way of recoupment, but found in favor of the plaintiff for the whole amount of its claim.

As the counterclaim was in fact a mere repetition of the alleged damages and losses set up by way of recoupment, it is obvious that the defendant was not prejudiced by the failure of the court to submit the counterclaim to the jury, or by the statement in the paragraph we have quoted that the amount claimed by the plaintiff on the machine was $5,059.31, when it was only $3,856.43.

Exception is taken to the following paragraph of the charge: “The testimony of the man who made the Belleville cans, that they were really cans made from No. 16 iron, is very strong, indeed, to show that the original cans wore made within the terms of the contract; and perhaps I ought to state to you with reference to those cans that they were furnished toy the plaintiff to the defendant, that the circumstance of their tipping in the brine tank is not of any controlling weight if you believe that they were made of No. 18 iron.

The contract specifies that they were to toe made of No. 18 iron, and that I would understand to toe American gauge; and not only so, tout of the gauge specified in the act of congress which had been passed a month preceding the making of this contract.” It was competent for the court to express to the jury its opinion that the testimony was “very strong, indeed, to show that the original cans were made within the terms of the contract.” The only defect claimed to exist in the cans was that they were uot made “of Xo. 18 iron.” It was not error, therefore, for the court to tell the jury that the circumstance of the cans tipping in the brine was of no controlling weight if t.liey were made of Xo. 18 iron, for the reason that as to them the only issue was whether they were made of No. 18 iron.

The complaint is made that in referring to the gauge by which the number of the iron out: of which the cans were made was to be determined, the court remarked that it understood it “to be American gauge, and not only so, but of the gauge specified in the act of congress.” It said that the court should have said “United fita tes” instead of “American,” where the latter word occurs In the quoted paragraph. Conceding this to be so, the error should have been called to the attention of the lower court: at the time.

Assuming that there is an American gauge and a United States gauge, it is plain that the gauge applicable to these cans was the gauge established by act of congress, whether it be called “American” or “United States”; and in substance and effect the court so told i:he jury, who could not have understood the charge in any other sense. The overruling of a motion for a new trial is not the subject of an assignment of error in this court. This rule has been too often repeated to require a citation of the cases.

And the question of the allowance or refusal of amendments to the pleadings is one? resting in the discretion of the trial court, and is not reviewablc in this court. Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, and cases there cited. Finally, complaint is made that the verdict of the jury is in excess of the amount claimed in-the pleadings by $9.97, and is otherwise informal. These objections were not brought to the attention of the lower court, and cannot, therefore, be noticed by this court.

It is the province of an appellate court to review the rulings of the trial court on questions actually brought to the attention of that court, and decided by it. This rule is essential to preserve the character of this court as a court of review. Railway Co. v. Henson, 19 U. S. App. 169, 7 C. C. A. 349, and 58 Fed. 531; King v. Asylum, 21 U. S. App. 481. 525, 32 C. C. A. 145, and 64 Fed. 331, 359; Elliott, App. Proc. §§ 770, 771; Manufacturing Co. v. Joyce, 8 U. S. App. 309, 4 C. C. A. 368, and 54 Fed. 332.

In the last case cited, the court say: “The rule is well established iliat the appellate court will only permit those matters to be assigned for error that were brought to the attention of the court below during the progress of the trial and then passed upon.” We may add that we perceive no substantial error in the verdict. Construction Co. v. Fitzgerald, 137 U. S. 98, 112, 11 Sup. Ct. 36, 41. The judgment of the circuit court is affirmed.