C. W. YOUNG CO. v. UNION OIL CO. OF CALIFORNIA, 5 Alaska Fed. 188

RUDKIN, Circuit Judge (after stating the facts as above). Under the affirmative defenses, as limited and explained by the bill of particulars, the plaintiff in error based its right of recovery upon the loss of profits on certain specific unfilled orders, and we are at a loss to know how the cost of the dock and other facilities could have any bearing upon that issue.

For, waiving the question whether the cost of these facilities would be a proper element of damage in this case'under any circumstances, we deem it sufficient to say that such cost was not made the basis of recovery, and the testimony offered was not relevant to any issue in the case. The instructions of the court are numbered from 1 to 36, inclusive, and cover 24 pages of the printed record.

The only exceptions to the instructions are in the following language: “The defendant excepts to the instruction given by the court to the effect that the plaintiff did not undertake to keep the defendants supplied with sufficient oils on hand to supply the trade it could procure or the business it could procure, and we except to the instruction of the court giving the definition of speculative damages, and the defendant excepts to the instruction that the. defendant was not warranted in entering into any contracts or agreements for future delivery of oils under the contract of 1915, unless the sales were confirmed.” The first and second exceptions failed to direct or challenge the attention of the court below to any particular part or portion of the charge, and are therefore of doubtful sufficiency.' In instruction No. 7, the court charged the jury in general terms that, if the plaintiff failed to supply the defendant with the specified oils and greases in sufficient quantities to satisfy the demands of all customers procured by it within the territory designated, it would be liable in damages for such losses as the defendant sustained by reason of such failure.

This instruction was qualified by instruction No. 8, in which the court charged the jury that, under the terms of the contract as pleaded, the plaintiff was not required to keep on hand at Juneau at all times a sufficient supply of oils to meet all possible demands, that the presumption was that the defendant would notify the plaintiff of all orders or contracts for the sale of oil procured by it, and that deliveries would be made by the plaintiff according to such notification. While not so stated in terms, this instruction had reference to the written contract only.

Instruction No. 9 referred to the oral contract, and the court again charged the jury that it was the duty of the defendant to notify the plaintiff of all sales and prospective sales of oils for delivery to customers, unless the contract provided in terms that the oils and compounds mentioned in the contract should be at all times kept on hand at Juneau for such sales as the defendant might make. Under the general exception in question, counsel for the plaintiff in error challenges the correctness of instructions 8 and 9, although each instruction relates to a different contract and to a different subject-matter.

But, waiving the question of the sufficiency of the exception, the objection to the instructions is not well founded. Manifestly an agent authorized to make sales on commission cannot recover unearned commissions on unfilled orders from his principal, unless the principal had knowledge or notice of the orders and an opportunity to fill them. The next exception relates to the definition of speculative damages as given by the court. The question of damages or the right to recover anticipated profits was referred to by the court in a number of instructions, and some of these are admittedly free from objection.

The exception is therefore insufficient for any purpose, and saves no question for review in this court. The last exception is doubtless directed to instruction No. 19, wherein the court charged the jury that there could be no recovery under the oral contract for loss of profits on orders or contracts for future deliveries, unless such orders or contracts were confirmed by the plaintiff. The written contract provided that all sales should be made for cash on delivery and the authority of the agent was strictly limited to the terms and conditions set forth and made a part of the contract.

As already stated, the written contract was manifestly a mere continuation of the oral contract, and in this connection it is a significant fact that the terms of 'the two contracts are pleaded in the answer in almost identical language. We think it clear, therefore, that under the contract and under the testimony the agent had no authority to enter into contracts for future deliveries that might extend beyond the terms of the agency, unless such contracts were expressly authorized or subsequently ratified. We find no error in the record, and the judgment is therefore affirmed-