Trinidad Asphalt Mfg. Co. v. Trinidad Asphalt Refining Co.

ROCHREN, District Judge,

after stating the case as above, delivered the opinion of the court.

The issues in this case were of fact only, and are settled by the verdict of the jury. The assignments of error present for our consideration only certain- exceptions taken to rulings of the court in respect to the admission of testimony, and to portions of the charge as given to the jury, and to one refusal to charge as requested.

1. The court correctly ruled that the question to defendant’s witness Terpening whether, to his knowledge, the officers of plaintiff company knew that defendant company was handling other asphalts, called for irrelevant testimony.' The defendant’s right to handle other asphalts was unquestioned, and whether or not plaintiff’s officers knew it did so was immaterial.

2. There was no error in allowing the same witness to be asked, on cross-examination, if he did not know, when he made the contract with the Ayreult firm at Tonawanda, that their contract with plain *137 tiff company had about expired. The court correctly held that, while the contract required plaintiff to sell and deliver to defendant material of the kinds designated to be used exclusively in its own trade and for the purposes stated, it did not permit defendant, by making contracts with other like companies throughout the country, to require the plaintiff to supply all such companies under its contract with defendant. The question called for an answer which might have a bearing on the propriety of some of the orders for material sent to plaintiff, in respect to which defendant claimed damages.

3. The question asked the same witness on cross-examination respecting the mixture which defendant, after cancellation of the contract, had been selling the city for paving purposes, was within the fair limits of cross-examination of this interested witness. It might lead to a comparison of that material with what had been previously sold to the city. It did not call forth any answer to defendant’s prejudice.

4. The questions asked of the witness Reid were properly excluded. It was no excuse for défendant’s breach of the contract that plaintiff was anxious to be relieved from it.

5. In view of the testimony of the witness Reddick in respect to the furnishing by defendant of Trinidad cement to the city for paving, it was not improper to show that his own like act was with permission of plaintiff, with whom he had a like contract.

6. The questions and answers covered by the sixth assignment of error occurred in an unobjectionable attempt to explain the differential characteristics of two kinds of asphalt commodities. There was little success in the attempt, and no harm to either party.

7. That part of the deposition of the witness Liesak ruled out was irrelevant. There was no attempt to show that the cement which defendant was charged with having sold to the city was what was described in the contract or by any one as “paving cement.” ,

8. That part of the deposition of the witness Boorm stating the prices at which he was directed by the president of the Alcatraz Paving Company to sell material was plainly incompetent, and properly excluded.

9. The agreement of December 30, 1899, between the defendant and the National Roofing Company, of Tonawanda, was properly admitted in evidence. The contract made by the parties to this action is admitted by the pleadings. The fifth subdivision limits the plaintiff’s agreement to sell to material to be used exclusively in the defendant’s own trade and for roofs and sidewalks. Defendant, by its counterclaim, avers failure by plaintiff to fill its large orders for material, which it claims plaintiff was bound by the contract to sell and deliver. It was open to plaintiff, under the separate general denial contained in its reply to the counterclaim, to contend, and establish by proof, if it was able to do so, that any part of the materials so ordered was not .sought or intended by defendant to be used exclusively in its own trade, and for purposes of roofs and sidewalks, but for other purposes for which plaintiff was not bound to sell or deliver any materials. It is needless, in this connection, to consider the various meanings which may be ascribed to the word “trade.” The *138 correct meaning in any particular case is arrived at by considering the word in the light of the subject-matter, and of all the provisions and the other language of the instrument in which it is found. In this contract the word is qualified and limited by other words in the same clause. The plaintiff only agreed to furnish the materials for use in the exclusive trade of the defendant, and it was also limited to be used only for roofing and sidewalks. It is safe to say that, as used by the parties in that instrument, it was not intended to grant to the defendant the right to go to all like corporations over the country, and by subcontracts for supplying each of them with materials bind the plaintiff to supply them all, through defendant, under this contract. It was competent, therefore, for the plaintiff to show, if it could, that materials ordered by the defendant, which were not shipped, and in respect of which the defendant claimed damages, were not ordered in good faith for defendant’s exclusive use, but to fill the defendant’s contracts to supply other corporations with large quantities of the same materials. Defendant’s contract with the National Roofing Company had a tendency to support such contention, and was competent. If defendant, when it sent its large order of January io, 1900, intended that the material so ordered, or any considerable part of it, should be applied, not to the exclusive use of defendant in its trade, but to fill the contract it had but a few days previously made with the National Roofing Company, or to fill any similar contract, such order was wrongful, and a fraud on plaintiff. And defendant could be entitled to no damages for the failure to deliver such material, whether the plaintiff then knew or did not know of the fraud intended. Cooperage Co. v. Scofield (C. C. A.) 115 Fed. 119, 121 .

It cannot be said that there was no evidence to submit to the jury ón which they might find that part of the refined Trinidad asphalt ordered»by defendant of plaintiff, and for the nondelivery of which defendant claimed damages, was, when so ordered, intended for the National Roofing Company. Defendant’s contract with that company was made December 30, 1899. By it the defendant agreed to sell and deliver to the National Roofing Company 500 tons of refined Trinidad asphalt' yearly, shipments to be made from time to time in car-load or boat-load lots, as the roofing company might desire, at $23.30 per ton, free on board cars or boat at Jones Point, N. Y. This was at plaintiff’s plant, and the manner of delivery the same as plaintiff had agreed in respect to deliveries to defendant. Eleven days later defendant placed its order with plaintiff for 1,000 tons of refined Trinidad asphalt, to be sent on later shipping directions. Defendant’s testimony shows that it always claimed that plaintiff should consign material it should order to whatever place it might direct. But little remained to render the circumstantial evidence very strong—almost conclusive—that this order was in part to supply the National Roofing Company, and that little was amply furnished by the defendant’s evidence that at once, on plaintiff’s refusal to further deliver to it refined Trinidad asphalt,' and thereafter, it was unable to procure any of that material. Where, then, did the defendant purpose to procure the refined Trinidad asphalt which it had just con *139 tracted to deliver to the National Roofing Company, as it might order it, in car-load or boat-load lots, shipped at Jones Point, N. Y. ? What has just been stated applies to some of the exceptions taken to the charge of the court. We have examined all those exceptions with care, and find no error in the charge, which is a very full and fair presentation of the case, and covered the request which was refused so far as that was proper.

The verdict was in proper form, and disposed of all the issues, and the judgment is affirmed.