
    ERIE FOOD PRODUCTS CO., Plaintiff in Error, v. INTEROCEAN MERCANTILE CORP., Defendant in Error.
    (Circuit Court of Appeals, Sixth Circuit.
    June 10, 1925.)
    No. 4399.
    In Error to the District Court of the United States for the Northern District of Ohio.
    Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
   PER CURIAM.

We affirmed a judgment for the Interocean Company against the Erie Company (299 F. 71, q. v.), but gave leave for the trial court to entertain a motion for new trial, based on newly discovered evidence. That motion was made and denied. We allowed a writ of error to review that denial, and we did so because in some cases, exceptional in theory and very rare in practice, such denial may be, not an exercise, but an abuse, of discretion, and thus subject to review by this court. At the same time we suggested that, if it was made entirely clear that there was some permissible ground for denying the new trial motion, we would dismiss the writ of error as not presenting any substantial controversy. Such a motion to dismiss has now been made. Passing the questions of laches, of the sufficiency of the proofs to show that the sugar was not loaded before September 1st, and of the meaning of “shipped,” we find that the plaintiff bought from brokers in Java a large quantity of sugar, to be shipped in July and/or August. In their-purchase contract it was provided that the bill of lading should be proof of the shipment date. Whan plaintiff sold part of this same sugar to defendant, limited to the same shipment date, and since plaintiff would have no control over or knowledge of the facts as to shipment, it protected itself by a similar provision that the relative bills of lading should be proof of the date of shipment. If there was any falsity in these bills, plaintiff did not know it, and had nothing to do with it; and in these circumstances and in the absence of any fraud by plaintiff, the agreed proof must be taken as conclusive. Colonial Co. v. Interocean Co. (C. C. A. 3) 296 F. 316, 318. The denial of the motion for new trial was too plainly right to justify holding this writ of error for regular hearing. It will be . dismissed.  