Gambar halaman
PDF
ePub

7 F.(2d) 36

Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey and Thomas M. Kirby, all of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge. This writ brings in review the ruling of the District Court of the Northern District of Ohio in directing a verdict for the defendant at the conclusion of the plaintiff's evidence, in an action wherein the plaintiff sought damages for an injury sustained by the driving of an automobile in which he was riding into some gondola cars of defendant standing across a public highway.

The collision occurred at a country crossing about 9 o'clock at night. Plaintiff was a guest of Inman, the owner of the car, who was driving it. It was a dark night, but not raining or foggy. Plaintiff testified that Inman had been driving 25 or 30 miles an hour; that "just before the accident I was sitting in the automobile, looking straight ahead," and "we got within 15 or 20 feet of the crossing and saw a train of cars across the highway. Before that I had not seen it. Before that I was looking straight ahead." He also said the road was straight for 500 yards before reaching the crossing; that "the lights were burning brightly on the automobile." B. F. Sharpe testified that he was in an automobile following the one driven by Inman, and was a half or threequarters of a mile from the crossing when the accident occurred; that he had followed Inman's automobile for some distance, driving at about the same rate of speed, 18 or 20 miles an hour. There was a "little hollow" in the road before reaching the crossing, and as he came out of the hollow when about 165 feet from the crossing he saw the train and Inman's automobile in the road. There was some evidence tending to show that the cars had occupied the crossing 20 or 30 minutes. There is a statute in Ohio (Gen. Code, 8 7472) making it a misdemeanor for a railroad company unnecessarily to obstruct a public highway by permitting cars or locomotives to remain across it for more than 5 minutes. Another statute of the state (Act May 14, 1921 [109 Ohio Laws, p. 219]) provides "whenever there is not sufficient light within the limits of the traveled portion of the highway to make all vehicles, persons, or substantial objects clearly visible within a distance of at least two hundred feet, the forward lights which a motor vehicle, except commercial vehicles, as here

inafter provided, is required to display, shall, when the motor vehicle is in motion, throw sufficient light ahead to show any person, vehicle, or substantial object upon the roadway straight ahead of the motor vehicle for a distance of at least two hundred feet."

[1] If we assume that the obstruction was wrongful-amounting to a nuisance under the first-mentioned statute or in any event negligence, which is immaterial-the question is whether the collision followed as a natural and probable result that ought to have been anticipated or, as contended by defendant, an intervening negligent act was the sole proximate cause of it. The general rule is that if a new and independent force, acting in and of itself, intervenes, causing an injury, it will be regarded as the proximate cause. Insurance Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65; Goodlander Mill Co. v. Standard Oil Co., 63 F. 400, 11 C. C. A. 253, 27 L. R. A. 583; and authorities cited.

Giving to plaintiff every favorable inference to be drawn from the evidence, the conclusion that Inman was grossly negligent is unescapable. His testimony is not in the record, and it does not appear whether he was looking ahead as he approached the cars or when he saw them. But the headlights on his automobile were burning brightly, and it must be presumed that they complied with the statute and were of sufficient strength to disclose the cars across the track at a distance of 200 feet from them. The lights on Sharpe's car disclosed the train and Inman's automobile when 165 feet away. That Inman could have seen the cars in ample time to stop his automobile before striking them is not open to doubt under the proof. The effect of his conduct is not different from what it would be were it affirmatively shown that he was not maintaining a lookout ahead, or that he was driving the automobile without headlights. The road was straight, the headlights burning brightly, and the cars visible for at least 165 feet. His failure to discover them and stop is inexplicable save on the theory that he was grossly negligent in operating the automobile.

[2] On the other hand, defendant had the right to occupy the crossing for its legitimate purposes, and while so occupying it was not required to maintain lights on its cars. Evans v. Erie Railroad Co. (6 C. C. A.) 213 F. 129, 129 C. C. A. 375. There is nothing in the evidence to show that it was unnecessarily using it. But, if the stat

ute may be said to limit the right of occupancy by necessity and for legitimate purposes to 5 minutes, it would nevertheless seem obvious that the additional use, even if negligent, was an incident and not a concurring proximate cause of the accident.

[3] The authorities cited by plaintiff as applicable to the disputed question of proximate cause were decided on the particular facts under consideration. They show circumstances extenuating the operator of the automobile as in Kendall v. Des Moines, 183 Iowa, 866, 167 N. W. 684, where the excavation was concealed by mist, and Prescott v. Hines, 114 S. C. 262, 103 S. E. 543, where the cars were obscured by fog or smoke. A case in point is Gilman v. Central Vermont Ry., 93 Vt. 340, 107 A. 122, 16 A. L. R. 1102, in which it was held that the action of a railroad in obstructing a crossing for an unlawful length of time, in violation of a statute, was merely a condition and not the proximate cause of an injury resulting from a collision with the cars. See, also, Gage v. Boston & Maine Railroad, 77 N. H. 289, 90 A. 855, L. R. A. 1915A, 363; Trask v. Boston & Maine Railroad, 219 Mass. 410, 106 N. E. 1022. These cases,

we think, illustrate the distinction between actionable negligence and a fortuitous circumstance too remote to be regarded as a concurring proximate cause of an injury: That the collision would not have occurred had the cars not been permitted to remain across the highway is beside the question of causal connection. Lang v. Railroad, 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729; McCalmont v. Pennsylvania R. Co. (6 C. C. A.) 283 F. 736. The most that can be said for plaintiff is that defendant created a situation in which Inman's negligence operated to bring about the collision, which would have been true if the train had occupied the crossing only while passing over it. Defendant's act was merely a condition and in no sense a concurring proximate cause of the injury.

Judgment is affirmed.

MILLS-MORRIS CO. v. CHAMPION SPARK
PLUG CO.

(Circuit Court of Appeals, Sixth Circuit.
June 8, 1925.)

No. 4239.

1. Sales 71 (4)-Contract held by implication to bind seller to fill orders.

A contract between plaintiff, a dealer in automobile accessories, and defendant, a manu

facturer of spark plugs, by which plaintiff agreed to keep on hand a stock of defendant's plugs to meet the requirements of its trade, that all of its purchases during the contract term should be specified, accepted, and paid for at the prices and on the terms set out, held by implication to obligate defendant to accept and fill orders which complied with the contract terms and were necessary to enable plaintiff to supply its trade.

2. Contracts 10(4)-Sales (4)

Contract held not indefinite or invalid for want of mutuality.

An agreement by plaintiff, which had an established trade in automobile accessories, which obligated it to buy from defendant, a manufacturer, all the spark plugs that plaintiff should actually in good faith require in the

normal course of its business, is sufficiently definite as to quantity, and is not void for lack of mutuality.

In Error to the District Court of the United States for the Western District of Tennessee; Xenophon Hicks, Judge.

Action at law by the Mills-Morris Company against the Champion Spark Plug Company. Judgment for defendant, and Reversed. plaintiff brings error.

Walter P. Armstrong, of Memphis, Tenn. (Wilson, Gates & Armstrong and Bertrand W. Cohn, all of Memphis, Tenn., on the brief), for plaintiff in error.

J. W. Canada, of Memphis, Tenn. (Canada & Williams, of Memphis, Tenn., and Edwin J. Marshall, of Toledo, Ohio, on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge. The MillsMorris Company was a jobber in Memphis, Tenn., engaged in selling automobile accessories and supplies. The Champion Spark Plug Company manufactures and sells a well-known spark plug used on motors. On January 20, 1922, the Morris Company presented to the Plug Company a letter prepared by the latter and accepted by it on January 22d, which, constituting the contract between them, was canceled by the Plug Company May 11th, on the ground that its relations with the Morris Company could Therenot be "amicable and co-operative." upon the Morris Company brought this suit for damages. The District Court, being of opinion that the contract was merely an agreement as to prices and terms of shipment when and as defendant chose to accept orders from the plaintiff, directed the jury, at the conclusion of plaintiff's evidence on the trial, to return a verdict for

7 F.(2d) 38

the defendant, upon which judgment was entered.

The controversy here is as to whether the contract is valid, and, if so, what obligations are imposed by it. It begins: "We [plaintiff] hereby agree that all of our purchases of the Champion spark plugs between January 1, 1922, and December 31, 1922, shall be specified, accepted, and paid for at the prices and upon the terms and conditions following. Your performance of this agreement is subject to delay caused by strikes, lockouts, labor disturbances, shortage not within your reasonable and practical control." Then follows the price list, after which come the terms of payment. Under the shipping specifications it is provided: "We agree to keep on hand at all times a stock of the different types of Champion plugs sufficient to supply the requirements of our regular dealer trade and to specify only the types required for that trade. We' herewith specify shipping dates, quantities, and types for shipment to be made within 60 days, and wherever possible will anticipate our requirements 60 days." There is a provision relating to "sales co-operation," to the effect that a representative of the Plug Company would work directly with the salesmen of the Morris Company, with the view of increasing the sales of Champion plugs to the mutual benefit of the parties.

Other clauses relate to distributor's agreements, and it was provided that the prices set out might be advanced by the Plug Company from time to time without previous notice to the Morris Company. Another provision is: "Should any of the terms, provisions or conditions of this agreement be evaded or violated by us [Mills-Morris Company], you are to have the right to cancel or suspend at your option this agreement and/or any orders or specifications in your hands at that time." The Morris Company was to canvass the territory for purchasers and promote the Plug Company's trade and interest in every reasonable way, agreeing that, if "we do not cover our territory or handle our sales, or keep or perform this agreement in all respects to your satisfaction, you may cancel without notice this agreement and/or all unfilled orders and specifications."

It will be noted that plaintiff agreed that all of its purchases of Champion spark plugs, of which defendant was the sole manufacturer, between January 1st and December 31st, should be specified, accepted, and paid for at the prices and upon the terms set out, and, further, it would keep on hand a stock sufficient to supply the requirements of

its regular trade, and order only the types required for that trade. There was an understanding as to co-operation between the two in increasing sales to their "mutual benefit and profit," plaintiff agreeing to promote the trade and interest of defendant in every reasonable way.

[1] Plaintiff had been handling Champion plugs prior to the arrangement of January 22d, and, as stated, defendant alone manufactured them. It did not agree in express terms to sell plugs to the plaintiff, but the obligation was clearly implied in its undertakings and the requirements that it exacted of plaintiff. If the agreement related solely to prices and terms of shipments when and if defendant elected to accept orders, as it contends, it is difficult to see why there was exacted from plaintiff an obligation to keep on hand a stock sufficient to supply its trade, or why defendant reserved to itself the option of canceling, not only orders received, but also the agreement. In our opinion it was obligated to supply plaintiff, upon the conditions set out in the contract, with the plugs required by it for its customers.

[2] Nor is the agreement lacking in mutuality because imposing no obligation to buy. Plaintiff had an established trade, and there was implied in the language referred to an obligation to buy from defendant all the plugs that plaintiff should actually, in good faith, and in the normal course of its business, require in supplying its trade. This was sufficiently definite in quantity to be binding. Lima Locomotive & Machine Co. v. National Steel Castings Co. (6 C. C. A.) 155 F. 77, 83 C. C. A. 593, 11 L. R. A. (N. S.) 713; Pittsburgh Plate Glass Co. H. Neuer Glass Co. (6 C. C. A.) 253 F. 161, 165 C. C. A. 61.

v.

But it is argued that, even if the agreement was binding, defendant properly exercised its right of cancellation for dissatisfaction in performance. It will be observed that in one of the clauses the right was made dependent upon an evasion by plaintiff of any of "the terms, provisions, or conditions of this agreement"; in the other, it was contingent upon the failure of plaintiff to "cover our territory or handle our sales or keep or perform this agreement in all respects to your satisfaction." It is contended under the last provision that defendant's mere declaration of dissatisfaction was conclusive as to its existence.

Concededly the rights of the parties must be determined by what they have put into their agreement. But this is not a contract involving art, personal taste, or fancy, in

which the party to be satisfied is the sole judge of his own satisfaction. Crawford v. Publishing Co., 163 N. Y. 404, 57 N. E. 616. The performance here related exclusively to the character, utility, and quality of a commercial service. In this class of cases it has been held by some courts that, to justify cancellation under a provision of this kind, there must be reasonable grounds for the dissatisfaction. This court, however, considered the question in American Music Stores v. Kussel, 232 F. 306, 146 C. C. A. 354, L. R. A. 1916F, 882, and after a review of many authorities reached the conclusion that the right of cancellation depended upon the existence of dissatisfaction, regardless of its reasonableness. See, also, Computing Scale Co. v. Barnard Co. (6 C. C. A.) 259 F. 250, 170 C. C. A. 318. The line of demarcation between this and the rule requiring reasonable grounds. is admittedly narrow. In the one case, there must be actual dissatisfaction, with or without reason, the question being one of fact for the court or the jury (Thaler Bros. v. Construction Co., 229 Pa. 512, 79 A. 147, 33 L. R. A. [N. S.] 345); in the other, the question of fact is whether there is reason for the dissatisfaction even if it exists.

No evidence was introduced tending to show that defendant was not satisfied save its letter canceling the agreement for lack of co-operation and amicable relations. The prima facie case made out by this evidence the jury might have thought to be rebutted by proof of amicable business relations between the parties, plaintiff's full compliance with the contract while in force, and its ability and willingness effectively to carry out all the terms thereof. Defendant introduced no evidence. If upon another trial it can show that it was actually dissatisfied with plaintiff's performance-not with the contract-it will be entitled to a judgment of acquittance.

Judgment reversed.

[blocks in formation]

print showing borings made along the course by the city, with the character of the subsoil at different depths designated thereon and represented by the city to be correct, the city is not relieved from an implied warranty of the substantial truthfulness of such representations of fact by a provision in the specification of the contract that the profiles were "reasonably correct, but are not guaranteed to be absolutely so," and that results of the borings were platted on the profiles for the information of the contractor, "but are not guaranteed," or by a statement in the bid that the bidder had made such investigation as was necessary to determine the character of the material to be encountered, and, if the representations were made in bad faith, there was a breach of the warranty.

In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; D. C. Westenhaver, Judge.

Action at law by John W. Farley against the City of Lima, Ohio. Judgment for plaintiff, and defendant brings error.

firmed.

Af

Paul T. Landis and J. J. Weadock, both of Lima, Ohio, for plaintiff in error.

J. Henry Goeke, of Lima, Ohio (Wheeler & Bentley, of Lima, Ohio, on the brief) for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge. John W. Farley entered into a contract with the city of Lima, Ohio, on October 28, 1919, by which he agreed to construct a sewer about 3 miles in length, varying in size from 84 inches at the beginning to a much smaller dimension at the end, for $528,000. He completed the work in the early part of 1922, and shortly thereafter brought this action in damages for breach of an implied warranty arising from false representations as to borings made by the city preparatory to letting the work, upon which, as he averred, he relied in entering into the contract. addition to denying liability under the general issue, the city interposed 10 separate affirmative defenses to the action. All of these, except the ninth, were withdrawn from the jury, as they were either unavailable in law or included in the general issue submitted. The jury returned a verdict for plaintiff in the sum of $153,579. A remittitur of all in excess of $124,598 was ordered, upon penalty of a new trial for nonacceptance. It was accepted, and judgment rendered against the city for the latter sum.

In

Defendant did not request a directed verdiet on the evidence, or except to the charge.

[ocr errors][ocr errors]

7 F.(2d) 40

It did, however, demur to the petition, and at the conclusion of the trial statement asked for a directed verdict, excepting to the court's refusal to grant it. This exception was waived. So on the record here the questions available to defendant are the sufficiency of the petition as tested by the demurrer and the competency of certain evidence to the admission of which defendant objected and excepted.

The essential averments of the petition as simplified are: That prior to entering into the contract of December 28th defendant stated to plaintiff that borings had been made along the route of the proposed sewer, and furnished to him blueprints and specifications purporting to show the depth to which they were made; that it represented to him that samples of the subsoil were taken at various depths in the borings, examined by representatives of the city, and the character thereof correctly shown on the blueprints; that plaintiff had no knowledge of the subsoil along the route of the sewer, as defendant well knew, but, relying upon and believing in the representations of defendant and the statements on the blueprints as to the results of the borings, entered into the contract; that after entering upon the work he discovered that defendant's representations of the underground soil were untrue, and that much of it consisted of large areas of quicksand and other substances, which required open cut work where tunnel work was intended, and which was more difficult and expensive, and necessitated expenditures much in excess of what would have been made, had the soil been as represented. It was further alleged that defendant knew the real character of the subsoil, and deliberately misrepresented it on the blueprints, thereby inducing plaintiff to enter into the contract and perpetrating a fraud upon him. That the petition on its averments stated a cause of action is not an arguable question. But it is contended that the provisions in the specifications attached to the contract, that "the profiles are reasonably correct, but are not guaranteed to be absolutely so," and the results shown by the borings are "plotted on the profiles for the information of the contractor but are not guaranteed," together with the statement in plaintiff's bid that he had made such investigation as was necessary "to determine the character of the material to be encountered," prevail over the averments of the petition and show, notwithstanding them, that no express or implied warranty was given.

We are unable to adopt the view that be

cause of these provisions plaintiff was deprived of the right to rely upon representations of fact. While defendant refused to guarantee the absolute accuracy of the profiles or the results of the borings as shown thereon, it did state as facts that the borings were actually made, and "for the information of the contractor" the results appearing on the profiles were "reasonably correct." There was an implied warranty of the verity of those statements, and similarly that the results plotted on the profiles were "reasonably correct," subject, of course, to errors of the employés of the city-not bad faith-in observing and recording the results. If, as alleged, they were willful misrepresentations, and plaintiff relied upon them, there was a breach of the warranty. Hollerbach v. United States, 233 U. S. 165, 34 S. Ct. 553, 58 L. Ed. 898.

In the case just cited there was an approximation of quantities, and the contractor was required to ascertain for himself the nature of the work. But there was also a definite statement as to the character of the material back of the dam, as here there was a definite statement that borings had been made and the results shown on the profile were reasonably correct. In both cases the representations of fact were untrue. See, also, Christie v. United States, 237 U. S. 234, 35 S. Ct. 565, 59 L. Ed. 933, and United States v. Dredging Co., 253 U. S. 1, 40 S. Ct. 423, 64 L. Ed. 735. It was held in the Christie Case, where there was a provision that the bidder must inform and satisfy himself as to the nature of the material, that a recovery could be had for extra expenses incurred in penetrating and excavating material different from that represented if, as in this case, the time was not sufficient for the contractor to make his own borings, and he relied upon the government's borings which the specifications falsely stated represented "as far as known" the materials to be excavated. McArthur Brothers Co. v. United States, 258 U. S. 6, 42 S. Ct. 225, 66 L. Ed. 433, is not applicable, for in that case there was no deceptive representation that misled the contractor; and in Sanitary District v. Ricker, 91 F. 833, 34 C. C. A. 91, the evidence did not show that the trustees of the district "had any actual knowledge of the existence of said intractable material, or that they intended any deceit."

Objection was made to the testimony of plaintiff as to the profits he would have made, had the excavation work been of the character represented. The witness testified that he had carefully estimated the cost of the

« SebelumnyaLanjutkan »