ROBINSON, J. [1] This is an original action in this court to compel the Industrial Commission of Ohio to consider and allow

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

the application of the relator for a rehearing | the state insurance fund in the same manner as of an application filed by her and disallowed such awards are paid by such Commission." by the Industrial Commission more than six years prior to the filing of the application for rehearing, from which disallowance an appeal had been prosecuted to the common pleas court of Marion county, which appeal had been heard by that court and a jury, and a verdict rendered and entered upon the court journal adverse to relator.

The Legislature of Ohio has seen fit to define the writ of mandamus and to provide when it shall issue. Section 12283, General Code, provides:

"Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."

No claim is made here that any statutory duty is enjoined upon the Industrial Commission to grant a rehearing in this case, but it is claimed that the Industrial Commission has imposed upon itself the duty of granting such rehearing by the adoption of subdivision (b) of rule 22, where this language is used, "if it appears to the Commission that substantial justice has not been done to the interested parties." But the petition fails to state that the Commission made any such finding, but avers the finding of the Commission to have been that it "denied said application for a rehearing solely on the ground that defendant was without jurisdiction because said cause had been appealed to and decided by the aforesaid common pleas court of Marion county."

Granting, as we do, that the rules adopted by the Industrial Commission have upon it the force and effect of law until annulled by the Commission, or by this court, the relator has not averred a finding by the Industrial Commission that substantial justice has not been done, essential, under the rule, to enjoin upon the Commission the duty to grant the rehearing. This court in a mandamus suit might well rest its decision upon that ground alone, but, since the Commission made the affirmative finding that it was without jurisdiction in this matter, the parties hereto are entitled to the judgment of this court upon that subject.

[2] That the jurisdiction was transferred from the Industrial Commission to the court of common pleas of Marion county by the appeal is necessarily conceded. Having been transferred to the courts by the appeal, by what process did the courts lose that jurisdiction?

Upon final judgment in favor of the claimant, jurisdiction is by law reconferred upon the Industrial Commission to carry such judgment into execution, but we know of no provision for a review of the judgment of a court by the Industrial Commission; such judgment being subject to review only upon error in a higher court.

It is true in this case that the judgment of the court of common pleas was never journalized, and technically the case is probably still pending in that court. That fact, however, is not significant, since the verdict of the jury was against the relator here, and the only statutory provision for the reinvesting of the Industrial Commission with jurisdiction is where the claimant recovers a judg

ment.

The amended petition does not state facts which create a duty specially enjoined by law upon the Industrial Commission to rehear the application of the relator for compensation. The demurrer to the amended petition is therefore sustained. Demurrer sustained.

JONES, MATTHIAS, and KINKADE, JJ.,

concur.

BRADLEY LUMBER & MFG. CO. v.
CUTLER et al.

(Supreme Judicial Court of Massachusetts. Suffolk. May 28, 1925.)

1. Sales 182 (1)—Whether breach serious enough to justify defendants in refusing further performance is question of fact for jury.

Whether seller's breach of contract to sell lumber was serious enough to justify buyer in refusing further performance, as general rule, is question of fact for jury.

2. Sales 170-If seller's failure to furnish lumber did not go to root of contract, action for buyer's breach would lie.

If seller's failure to furnish lumber did not breach would lie, delay in shipments, not going go to root of contract, action for buyer's to essence of contract, nor preventing recovery if buyer refused to go on with agreement.

3. Sales 81 (4)-Seller of lumber excused from performance if causes for delay in deliveries were beyond its control.

Where parties agreed that deliveries of lumber under contract were subject to delay

The statute (section 1465-90, General from causes beyond seller's control, and jury Code) provides:

"Any final judgment so obtained shall be paid by the Industrial Commission of Ohio out of

could find, that shortage of cars and embargo were beyond seller's control and were not occasioned by seller, it was excused from performance within time agreed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

11. Sales 382-Computations of witness based in part on lumber manufactured before contract was made held relevant and material.

Where seller was not prevented from appropriating to contract lumber already manufactured in its action for buyer's breach, computations of witness based in part on lumber manufactured before contract was made were material and relevant.

1033(5)-Instruction 12. Discovery 79-Indentity of matters in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

The plaintiff relies for its failure to make shipments on the clause in the contract excusing delay because of "causes beyond our control." In answer, the defendants contend that by relying on this clause the plaintiff is suing on a defense, and not on a performance. If the contract contained no clause excusing the plaintiff from performance, and the delay was so important that it amounted to a breach of the contract, the defendants could have refused to go on and could have brought an action for the plaintiff's nonperformance. Whether the breach was serious enough to justify the defendants in refusing further performance, as a general rule, is a question of fact for the jury. National Machine & Tool Co. v. Standard Shoe Machinery Co., 181 Mass. 275, 63 N. E. 900; Eastern Forge Co. v. Corbin, 182 Mass. 590, 593, 66 N. E. 419; Dudley v. Wye, 230 Mass. 350, 119 N. E. 790; Miller v. Benjamin, 142 N. Y. 613, 617, 37 N. E. 631. If the plaintiff's failure were not so serious as to go to the root of the contract, an action for the defendants' breach would lie. A delay not going to the essence of the con

On May 10, 1920, the defendants made a written contract with the General Electric Company to supply it with lumber at its plants in Schenectady, in the state of New York, Pittsfield, in this commonwealth, Erie, in the state of Pennsylvania, and Bloomfield, in the state of New Jersey; provision was made therein for a modification in price in the event of a general price revision. To fulfill the contract the defendants made the contract in suit to purchase lumber from the plaintiff, dated July 2, 1920; it was executed by the plaintiff on July 27, 1920, and a short time thereafter was signed by the defendants. It required a minimum of three million feet of lumber, with a maximum of four million feet, at the defendants' option. Deliveries were to be in such quantities and at such times as the defendants ordered, shipments to be in "approximately equal monthly quantities during the contract period," the seller agreeing to make extra heavy shipments "during the fall months." There was no provision in the contract between the plaintiff and defendants for a price reduction in the event of a general price revision in the mar-tract would not prevent a recovery if the deket. The purchaser had the right to route all fendants refused to go on with the agreeshipments. No time limit was set for per- ment. formance but it seems to have been assumed that it was to be completed in one year. One of the clauses was, "This contract subject to delay from strikes, accidents, wreck of cars containing goods, or other causes beyond our control, and subject to cancellation from destruction of our mill." The defendants gave various orders for lumber; in August, September and October the plaintiff shipped a total of twenty-five cars. The defendants wrote the plaintiff, requesting more deliveries of lumber in August. The plaintiff's sales manager wrote excusing delay on the ground of continued rain. At the trial the plaintiff relied upon a car shortage as the reason for its delay. The defendants granted a price revision to the General Electric Company in October, 1920, and wrote the plaintiff asking it to revise its price for the lumber. plaintiff refused, and later, by letter of October 25, repeated its refusal. The defendants telegraphed the plaintiff's mill to stop all shipments, and on October 26, notified the plaintiff that owing to its failure to perform the contract and make deliveries, the defendants canceled the contract.

The

There was evidence that in August the plaintiff was ready to ship additional lumber, but was prevented by railroad embargoes and a shortage of railroad cars; that in September it endeavored to make more deliveries, but found it impossible for the same reasons; and that like conditions existed in October. We consider the defendants' exceptions in the order they are argued in their brief.

[1, 2] 1. The defendants moved for a directed verdict. The refusal to allow this motion raises the main question in the case.

[3, 4] The parties agreed that deliveries of lumber were subject to delay from causes beyond the plaintiff's control. The shortage of cars and the embargo, the jury could find, were beyond its control and were not occasioned by any act or omission of the plaintiff. On this finding the plaintiff was excused from performance within the time agreed. DurdenColeman Lumber Co. v. William H. Wood Lumber Co., 221 Mass. 564, 109 N. E. 648. See Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co., 199 Mass. 22, 42, 84 N. E. 1020. An embargo or shortage of cars might be so permanent and extensive "that the foundation of what the parties are deemed to have had in contemplation has disappeared, and the contract itself has vanished with that foundation." F. A. Tamplin Steamship Co., Limited, v. Anglo-Mexican Petroleum Products Co., Limited, 2 [1916] A. C. 397, 406, 407. See North German Lloyd v. Guaranty Trust Co., 244 U. S. 12, 37 S. Ct. 490, 61 L. Ed. 960; Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 39 S. Ct. 147, 63 L. Ed. 312, 3 A. L. R. 15; Metropolitan Water Board v. Dick, Kerr & Co., Limited, [1918] A. C. 119. These cases, however, are not applicable.

The conditions were not such that the foundations of the contract were taken away and its performance rendered impossible for such a length of time that the defendants could repudiate it.

[5] The defendants contend that there was error in the instruction given the jury, to the effect that time was of the essence if the plaintiff entered into the contract with knowledge of the contract of the defendants with the General Electric Company for the deliver

* *

ies of lumber, "in the same amounts of the [ The request was correctly covered by this same sizes * at the same times," and instruction and the defendants cannot comif it was made for the purpose of supply-plain that the exact language of the request ing the material to enable "the defendants was not given. to meet their obligations

"If the plaintiff shipped only four cars in August, and six cars in September, then in the ments beyond the plaintiff's control, the plainabsence of proving an excuse for larger shiptiff did fail in a substantial manner to perform its contract, and cannot maintain this action."

* with the [9] 6. The defendants' seventh request was General Electric." We do not find that the as follows: defendants excepted to this instruction. It was sufficiently favorable to them. The contract in suit contained no reference to the contract of the defendants with the General Electric Company. The plaintiff's knowledge of such contract was a question of fact. There was no error of law in this instruction. [6] 3. The judge correctly instructed the jury on the question of waiver. The waiver of a claim for damages was not involved. See Garfield & Proctor Coal Co. v. Fitchburg R. Co., 166 Mass. 119, 44 N. E. 119. In the case at bar one of the issues before the jury was the defendants' waiver of the plaintiff's failure to perform. The defendants accepted slow deliveries. The effect of this could be considered by the jury on the question of the defendants' waiver of the right to rescind the contract because of nonperformance by the other party. Norrington v. Wright, 115 U. S. 188, 6 S. Ct. 12, 29 L. Ed. 366.

The plaintiff's failure to perform was a question of fact; and the request was properly covered by the remarks of the court on this subject. There was no error in its refusal.

7. The subject-matter of the eighth and ninth requests was sufficiently covered in the charge, as was the tenth request. There was no error in refusing the defendants' remaining requests in this connection.

[10] As to the amount of lumber ordered, that too was for the jury, the amount appropriated also was a question of fact. issues were left to the jury under appropriate instructions.

These

[7] 4. The defendants excepted to the portion of the charge wherein it was stated in substance that if the plaintiff treated the [11] 8. The exceptions to certain testimony buyer fairly with reference to other custom- of the witness Mills must be overruled. His ers, and supplied the buyer ratably, the plain-computations were based in part on lumber tiff did its full duty to its customers with manufactured before the contract was made. reference to shipments. Whether the defend- The plaintiff was not prevented from approants were treated ratably was a question of priating to the contract lumber already manfact. There was evidence tending to support ufactured. The testimony of the witness rethe plaintiff's contention that they were so lating to such appropriated lumber was matreated, and supplied ratably with other cus- terial and relevant. tomers. The plaintiff, because of the difficulty in making shipments, was not obliged at its peril to make equal monthly shipments according to the contract, beginning August 1. It was protected by the clause of the contract excusing it from delay arising from causes beyond its control.

[8] 5. The defendants excepted to the refusal to give the twentieth request, in effect, that if the defendants were entitled to cancel the contract, their motive was immaterial. On this point the jury were told:

[12] 9. Answers to certain interrogatories filed by the defendants, to be answered by the plaintiff's president, were put in evidence by the defendants. The plaintiff then offered answers to interrogatories 6, 7, 8, 9, and 25. To the admission of these answers the defendants excepted. By G. L. c. 231, § 89, the party interrogated may require the whole of the answers, upon any one subject-matter inquired of, to be read if a part of them is read. The subject-matter inquired of by the defendants and the answers given in the interrogatories excepted to, related to the lumber manufactured by the plaintiff during the period

ficient identity of the matters inquired about to allow the admission of the answers.

"The defendants would have no right to can-covered by the contract. There was a sufcel this contract merely because the plaintiff refused to revise the price schedule. No inference should be drawn against any party to a contract if he stands on his contract and on his legal rights under it. Assuming that was the reason for cancellation and the only ground for cancellation that existed at the time, the cancellation would not be justified. Assuming that was a reason for cancellation but at the same time

there was a good ground for cancellation be

cause of unreasonable delays in delivery, the defendants would have a right to insist upon the unreasonable delays provided in your consideration of the case you find the delays were a breach of the contract."

[13] 10. On the issue of damages the jury were fully and accurately instructed. Many questions of fact were involved, including the question of the available market for the goods. See McLean v. Richardson, 127 Mass. 339. The duty of the plaintiff to mitigate the damage did not necessarily require the jury to consider the price paid by the General Electric Company to the defendants. The defendants cannot complain because of the refusal to give the nineteenth request.