
    No. 448
    RELIANCE COAL & COKE CO. v. BRYDON & BRO., INC.
    U. S. Circuit Court of Appeals, Sixth Circuit
    No. 3721.
    286 Fed. 827.
    Decided Feb. 9, 1923
    SALES — (1) Buyer held not released from takin coal under provision of contract — (2) Written con tract not modified by conditions printed on order-(3) Repudiation of contract renders tender un necessary — APPEAL AND ERROR — (4) Questio of excessive verdict not passed on by trial cour not reviewable.
    Attorneys: — O. S. Bryant and M. H. McLean, f< Reliance Co.; Edward Colston and H. G. Fisher, f< Brydon & Bro.
   KNAPPEN, J.

Epitomized Opinion

This was an action for breach of contract by H. I Brydon & Bros, against the Reliance Coal & Cok Co. The action was based upon a provision of written contract by which defendant agreed to pui chase a car per day of coal for one year to b shipped in monthly installments to a manufacturin company, giving defendant the privilege in case th manufacturing company could not take all the coa “to ship part of the same on contract to any o the other Fleichman plants.” Shipments were mad from July, 1920, until Dec. 11, 1920. As defendar refused to accept any further shipments, plainti: jsued. Upon the trial, defendant contended that 'th written contract should be interpreted as meanin that if the Baltimore company was unable to us the coal the defendant was not bound to accept th same. The trial court rejected the defendant’s coi struction of the contract and left the question t the jury whether plaintiff had duly performed il part of the contract and whether defendant ha given the plaintiff to understand that it was n longer bound by the same. There was a verdic and judgment for plaintiff, whereupon defendai prosecuted error. Held:

1. That the contract merely gave defendant tl option to change destination of shipments, and nc to relieve it from its obligation to take the fu amount of coal, because the manufacturing compan closed down, and the other Fleishman plants coul not take it.

2. A written contract for the purchase of coal not modified by conditions printed on an order sei by the purchaser for shipments.

3. Where defendant contracted for the purchas of coal to be shipped on its orders, notification ( the seller in response to a request for shipping orde) that it would take no more coal unless and until manufacturing plant reopened and that it wou notify the seller if it did so, which it never did, a repudiation of the contract, which rendered furth< tender of shipments unnecessary.

4. Where the question whether certain iten should be considered in estimating damages f< breach of a contract was not presented to the tri court the appellate court cannot reverse the jud; ment as excessive on the ground that such iten weré included.  