
    No. 509
    SANDUSKY CEMENT CO. v. HAMILTON & CO
    U. S. Circuit Court of Appeals, 6th Circuit
    No. 3741.
    287 Fed. 609.
    Decided March 16 1923
    PRACTICE — (1) Improper for court to give supple mentary instructions to jury in absence of counse —(2) Instructions given in absence of counsel no prejudicial in every instance. ' SALES — (3) Spe rial damages.
    Attorneys — A. C. Dustin and Fred Perkins, foi Cement Co.; Wm. Day, for Hamilton & Co.
   DONAHUE, C. J.

Epitomized Opinion

This was an action for damages for the non-deliv ery of coal bought by The Sandusky Cement Co against Hamilton & Co., coal brokers. Under VtA terms of’ the contract a stipulated quantity of coll was to be delivered each month or if delivery of sucl quantity should be impossible by causes beyond th< seller’s control, then to deliver that proportion o: such quantity which the tonnage actually produce: and shipped would bear to its total coal contracts The defendant did not own or operate any coal min: and therefore it was necessary for it to enter into : similar contract with the Jamison Coal Company As the defendant did not deliver the entire contrad amount during any one month, plaintiff brought ar action for damages at the end of the period coverec by said contract. The defendant claimed that it wa: prevented from shipping the capacity of eertaii mines by car shortage, embargoes and like causes beyond its control and that the plaintiff received its full proportion of coal each month. The defendam in its cross petition averred there was due it iron the plaintiff $23,874.50. The plaintiff admitted this indebtedness and the case proceeded to trial on the issue of damages. During the trial the court. excluded evidence tending to prove special damages While the jury was deliberating, supplementary in structions were asked for, which were given in writ ing. The case was tried before Federal Judge Wesfl enhaver and the jury returned a verdict of $6,104.4: as the plaintiff’s damages, leaving a net balance du: to defendant of $18,128.44. The plaintiff prosecute: error’to the United States Circuit Court. Held:

1. The giving of supplementary instructions to ; jury after its retirement in the absence of counse’ without affording them an opportunity to present oi to make timely objection, is not only error, but is t dangerous .practice calculated to cause a miscarriag: of justice.

2. Where a court -improperly gives supplementary instructions to a jury, no prejudicial error is committed where the instructions properly state the lav and are not a repetition in substance of other instructions previously given.

3. The sale by the owner of coal mines of a portion of his mines cannot be complained of by a pur chaser of coal whose proportion of coal delivered is not affected thereby. Evidence tending to prove spe cial damages by reason of the enforced closing ol plaintiff’s plant for lack of fuel is incompetent wher: there is nothing in the contract to indicate that either party had contemplated such a result iron non-delivery.  