DAY V. UNITED STATES.
125
DAY et aI. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. No. 981. 1. CONTRACTS-BREACH-RIGHT OF PROMISEE TO COMPLETE.
May 9, 1898.)
Where a contract to furnish horses for the United States cavalry Is not completed, and the contract gives the government the right to complete It at the contractor's expense, If sufficient suitable horses cannot be obtained at the Btipulated place of performance the government may purchase wherever it can secure the best terms.
2.
EVIDENCE-COMPETENCY CF WITNESS-PURPOSE OF OBTAINING INFORMATION.
Upon an issue as to how many horses arriving at a certain place during a specified time satisfied the requirements of a contract, It was error to reject the testimony of a witness who examined such horses with sutficient care to know whether they complied with the requirements, on the ground that his examination was not made with a view of ascertaining whether such requirements were satisfied. The test of the competency of a witness Is the extent of his knowledgE.. not the purpose with which he acquired it.
8.
SAME.
In Error to the District Court of the United States for the Eastern District of Missouri. J. D. Johnson, for plaintiffs in error. Walter D. Coles, for the United States. Before SANBORN and THAYER, Circuit Judges, and SHIRAS. District Judge. SANBORN, Circuit Judge. John J. Day, Thomas T. Rubey, and Charles G. Knox, the plaintiffs in error, sued out this writ of error, to reverse a judgment against them on a bond which they gave to the United States, on September 12, 1895, conditioned for the faithful perforJ:1lunce by Day ofa contract he had made with the government to furnish it. 78 cavalry horses, possessing the qualifications named in specifications, at the city of St. Louis, in the state of Missouri, on or before November 9, 1895. He failed to furnish a sufficient number of the specified horses, and the contract provided that, in case of his failure to perform it, the United States might supply the deficiency by purchase in open market or otherwise, and that the contractor should be charged with any loss whiC'h the government sustained by his failure. Pursuant to this provision of the contract, the. glivernment purchased in the state of Kentucky and in the city of Chicago 76 horses to supply the deficiency caused by the failure of the contractor, and charged him with the excess of their cost above the contract price, which was $3,063.50. The United States then sued the plaintiffs in error on their bond to recover this amount, and set forth in their petition the facts we have stated. The plaintiffs in error answered that the contractor, Day, had tendered to the horses of the character described in the contract, but that the United States had refused to accept them, and denied that they hadbeen compelled to expend $3,063.50 above the contract price in order to obtain the horses which he had agreed to furnish.
126
87 FEDERAL. REPORTER.
It is insisted that it was error for the court below to permit the government to prove at the trial the prices, which it paid for the horses it purchased in Kentucky and in Chicago, because the contract was to be performed in St. Louis; and it is contended that the measure of damages was the differellce between the contract price and the market value of the horses in that city. There was no error in this ruling, however, because the United- States produced evidence tending to prove that the requisite number of cavalry horses of the character called, for by the contract could not be procured within a reasonable time in the city of St.. Louis or in its vicinity, and the contract expressly provided that; upon the default of the contractor, the government might purchase them in open market or otherwise, and charge the loSS to the cohtractor. Under this agreement, the officers of ,the United States had tpe right to go to.the place or places where they could' obtain the number and character of horses required at .the lowest prices. They had .the'right to buy the horses there, and to charge the expense of their purchase and of their transportation to St. Louis to the contractor, by the (!xpress terIhsof the contract. ...., In order to rebut the testimony to the effect thai: these horses could Mt'befound within a reasonable time in the city of St. Louis, and for the purpose of proving that they might have been obtained in that city at lower prices than those paid for them in Kentucky ap.d in Chicago, and for the purpose of diminishiIlg the damages, the pJaintiffs in err()r.produced a witness who testified that be had been deputy sheriff of the National Stock Yards in St. Louis for about 2 years; that for 35 years prior to that time he had been engaged in buying and selling horses;. that he was present at the inspection of horses tendered to the government by Day;: that he knew about the numbel' of horses that arrived daily at the stock yards at St. Louis; that he was in a position where he saw most of them come that came into these in; that he closely inspected daily all the stock yards, except perhaps one or two loa'ds that came in early be· fore he arrived; and that about 2,000 horses arrived there each week. Thereupon the following questions were propounded to him by coun· llel for plaintiffs in error: "Did you observe them closely enough' to be. able, to state what number {)f those 'received possessed the qualIfications set forth' In these specifications {the specifications describing the horses required bbderthe contract] In the fall of 18951" . "Are you able ,to st;ate from the observation you made. of them A,bout ,how many of them were )JP, to the requirements :of the specifications']" '.'1 will get you to state ,hOW many, horses youobserved'tbat did possess tbe mentioned In these specifications that arrived in, the stock yards weekly during fall of 1895." '.
of these questions; but, after that l:i,e did .not examine' horses for the purpose of dettrrnuning. whf:lthflrt\1ey came up to the specifications, him to any of these 9-uesan eXaJ,J;l\nation WIth a 'VIew· of. ,ox ,not the horses filled the requirem.ents of,;tp:e}pe.Cificatiq;ns; and, as he'had never examina· ti?J;l qtt}J.eW th.at was not IlU,9weq,to;llnswer
all
LINEHAN RAILWAY TRAt\SFER CO. V. MORRIS.
127
the The effect of this ruling was to restrict the number of possible witnesses relative to the number and value. of cavalry horses in St. Louis in the fall of 1895 to those who had examined the horses arriving there for the express purpose of determining whether or not they cpmplied with the government specifications for cavalry horses, and it is not probable that anyone who was not interested in filling Day's contract ever made any examination for that express purpose. In other WOI'ds, the ruling of the court made the purpose of the examination, and not the knowledge obt&,ined by that examination, the test of the competency of the witness. But the measure of the competency of a witness is not the view or purpose with which he obtained his information, but the extent and character of the knowledge which he obtained. The question is not why he obtained his knowledge, but what amount of knowledge he acquired. And the question here was not why this witness examined the horses and knew whether or not they complied with the specifications, but it was whether or not he had so examined them that he did know. The court refused to let him tell whether or not he had made such all examination that he had acquired this knowledge. It refused to permit him to answer this question even with a simple ''Yes'' or "No." Yet if he had made the requisite examination, and had acquired the knowledge, he was equally oompetent to testify, whether he had obtained this knowledge with a view of purchasing the horses, OJ' for the purpose of raising or selling them in the open market, or foJ' the express purpose of determining whether they filled the specifications of this government contract. The court not only refused to let him answer the question we have been considering, but it declined to let this witness testify how many horses he observed that did possess the qualifications mentioned in the specifications. If he observed any so closely that he knew that they possessed these qualifications, the plaintiffs in error were undoubtedly entitled to prove that fact; and, if he did not so observe them, they were entitled to an answer to their question to that effect. No tenable objection to these questions and their proper answers seems to us to exist, and the judgment below must be reversed, and the cause must be remanded to the circuit court, with directions to.grant a new trial. It is so oril'"red. LINEHAN RAILWAY TRANSFER CO. v. MORRIS et aI.
(Circuit Court ot Appeals, Seventh Circuit. No. 474.
June 3, 1898.)
1. 2.
APPEAL ANI> ERROR-FAILURE TO SAVE EXCEPTIONS.
No advantage can be taken In an appellate court ot alleged errors In the charge of the court below, where no exception has been taken.
SAME-SEIIIES OF INSTRUCTIONS-GENERAL EXCEPTIONS.
Where only a general exception Is taken to the refusal of a serIes ot InstructIons, It will not be considered, If anyone of the propositions Is unsound..
In Error.. to the Circuit Court of the United States for the Southern District of Illinois.