(264 F.)

[9] In the federal courts the trial judge may, and it is often his duty to, comment upon the evidence, and express his views upon it and upon the issues of fact, while he must leave the ultimate decision of these issues to the jury. All this the judge below clearly and forcibly did. It is, however, possible for a trial court to do this and yet unconsciously so to color its charge that the jury may, nevertheless, be unfairly influenced in favor of one of the parties to the action. Where the line must be drawn between comment upon the evidence of facts which is and that which is not permissible is determinable only by an examination of the language and a consideration of the circumstances of each particular case.

[10] The acts and intents charged to the defendant in the indictment were unpatriotic and repulsive to all loyal citizens. They were that she had intentionally endeavored in the manner stated in the indictment to obstruct the prosecution of the war which they were striving and sacrificing to carry on. The trial was in the midst of that war, when patriotic men were particularly impatient of every interference and of every attempt to interfere with or cripple the universal efforts to win that war, efforts in which not only the armed forces, but all the people of the nation shared in various ways. The charges, however, were not proof. The defendant was presumed to be innocent, and must be treated as innocent of them, until the fact was proved beyond a reasonable doubt that she was guilty. It is apparent that at such a time and under such circumstances the task of conducting a fair trial of one thus accused of intentionally attempting to obstruct the universal efforts of the people was unusually difficult, that extraordinary coolness, care, and impartiality were indispensable, to prevent the patriotic fervor of the jury from usurping the place of that considerate judgment which it was their duty to exercise.

The real issues in the case were narrow and definite. The publication of the letter was not denied. The main questions were whether or not the defendant caused it to be published with the evil intents and effect charged in the indictment, and whether or not it contained false statements. The government introduced testimony of witnesses that the defendant made many statements at other times which were claimed to have been similar to those in the letter. This testimony was introduced to illustrate and prove her intent in publishing that letter. Generally speaking, the making of these statements was either denied or explained by the defendant and her witnesses, and thus many side. issues regarding these outside statements were raised. The court carefully instructed the jury that the defendant was not on trial for any of these statements, and that they must consider them, and the issues concerning them, only so far as they related to the question of her intent in writing and causing the publication of the letter. The charge. of the court on these side issues, however, occupies many printed pages of the record, and it treated of many subjects. Between two or three pages of it are devoted to Great Britain, and to the contention that England is a democracy. Bolshevism and Internationalism were discussed. In the treatment of the main issues on trial, as well as of the side issues, the court sometimes stated in an impressive manner the

positions of the government, reviewed and summed up the evidence it had introduced in support thereof, but merely told the jury that they would remember and consider the denials or explanations of the defendant, or stated the evidence in her behalf with less particularity than was used in the statement of the evidence for the government, or omitted reference to it.

In its charge upon the issue whether or not, if the word "government" in the letter meant those by whom the government was administered, the statement that the government was for the profiteers was false, the court declared that the government had introduced the address of the President before Congress recommending, for the reasons therein set forth, a formal declaration recognizing the existence of a state of war, the resolution of Congress recognizing such a state, and the President's statements of the war aims of the nation in his address of January 8, 1918. It then stated that the resolution of Congress recited that the Imperial German government had committed repeated acts of war against the United States and that the war was thrust upon it, declared that the President based our entrance into the war on the highest grounds of humanity and unselfishness, and then said: "From the evidence you are to determine what the defendant meant by this statement, and what, if anything, she intended to accomplish by it. The court will refer to her explanations a little later."

But the court probably forgot or overlooked this matter, and it failed to review or state the explanations of the defendant upon this subject. The charge contains in several places rich and inspiring expressions of patriotism and of the nobility of our aims in the war, which could hardly have failed to increase the commendable patriotic feeling that was already aflame in the heart of every juryman. This charge. has been repeatedly read and thoughtfully considered. The entire record of the trial has been thoroughly examined. The task of the trial court was unusually delicate and onerous. The record demonstrates its conscientious endeavor to accomplish it. With the exceptions of the rulings which have been discussed, its declarations of the law in its charge were clear and correct, though sometimes blended with comments on and discussions of the facts, which made it somewhat difficult to separate the one from the other, and when the entire charge is considered in the light of the time and circumstances surrounding the trial, of the extended discussion in the charge of the many side issues which crept into the case, and of the other characteristics of the charge to which attention has been called, this court is unable to resist the conclusion that the patriotic zeal of the court below led it to place too heavy a burden upon the defendant in her endeavor to meet the evidence which the government produced against her, and that the cause of the administration of justice will be served by another trial of this

case.

The judgment of the court below must accordingly be reversed, and the case must be remanded to the court below, with instructions to grant a new trial.

It is so ordered.

(264 F.)

CARLAND, Circuit Judge (dissenting in part). As there was not sufficient evidence to warrant the jury in finding that the "government” was for the profiteers, whatever may have been the sense in which that term was used in the letter of defendant, I cannot see how she can complain of the submission of the question as to the meaning of the term to the jury.

I concur in what is said in criticism of the charge of the court, but I wish to be more specific. The court told the jury that the defendant was not on trial for her views in regard to governmental polity, or for being an Internationalist, but that such views or status should be considered by them in passing upon the intent of defendant in causing the publication of the letter set forth in the indictment. It appears from the record that the question of whether or not the letter was caused to be published by the defendant with the specific intents charged in the indictment was the only litigated question at the trial arising out of the indictment. Under the charge of the court, the fact that the defendant was an Internationalist might turn the scales against her on the question of intent. In other words, she might be convicted of the charge in the indictment because she was an Internationalist. It is immaterial whether the defendant's views as to Internationalism, whatever the term may mean, were wrong or not, as the court said to the jury, the defendant was not on trial for being an Internationalist. But if the jury could resolve the question of intent against the defendant because she was an Internationalist, I am unable to see why the charge of the court did not permit the jury to convict the defendant because she was an Internationalist. The court's view was that Internationalism is inconsistent with patriotism or love of country; but, be that as it may, we should be extremely careful not to punish a citizen for opinions, honestly held, not in violation of the law of the land. I therefore concur in reversing the judgment below upon the ground of error in the charge.

ACME MFG. CO. v. ARMINIUS CHEMICAL CO.

(Circuit Court of Appeals, Fourth Circuit. July 12, 1919. On Rehearing, February 17, 1920.)

No. 1707.

1. Sales 409-Buyer held entitled to sue for anticipatory breach.

Where, during performance by defendant of a contract to deliver to plaintiff a stated quantity of sulphur pyrites in monthly shipments, it expressly repudiated the contract on the ground that it had expired and refused to make further shipments, plaintiff had the right at its option to treat the contract as ended and to maintain an action for its breach.

2. Sales 418(2)-Measure of damages for breach by seller stated.

In an action for breach of a contract by defendant to deliver to plain tiff a quantity of sulphur pyrites, which defendant repudiated without justification after partial performance, where plaintiff used diligence, but was unable to buy elsewhere under market price, its measure of dam For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexer

ages was the difference between the contract price and the market price at the time and place of delivery.

8. Sales 85(2)—Strike provision does not excuse delivery within reasonable time after strike ended.

Under a contract for sale and delivery of a quantity of sulphur pyrites within a stated time, subject to delays caused by strikes or other causes beyond seller's control, delays from such causes do not relieve the seller from the obligation to deliver within a reasonable time after their removal.

4. Sales 418(1)—No distribution between contracts pro rata, where right not availed of in good faith.

A defendant, which without justification repudiated a contract to deliver sulphur pyrites to plaintiff, held not entitled to a reduction of its obligation to plaintiff's pro rata share of the production of its mine, where it did not make equitable apportionment between its other contracts, but in fact made new contracts at higher prices, and delivered on those most profitable, to the partial and total exclusion of others.

Woods, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; Edmund Waddill, Jr., Judge.

Action by the Acme Manufacturing Company against the Arminius. Chemical Company. From a judgment for a less amount than demanded, plaintiff brings error. Reversed and remanded, with instructions.

By contract dated October 21, 1915, the defendant sold plaintiff 4,000 to 7,000 tons fines sulphur pyrites, to be shipped at the rate of approximately 500 tons per month, beginning at plaintiff's option on or before January 1, 1916, at a price of 91⁄2 cents per unit of sulphur, delivered f. o. b. cars at defendant's mines. The contract contained a clause providing that it was "made subject to delays and stoppages caused by strikes, accidents, delays by railways, and causes beyond the selling company's control," and also provided that the plaintiff's right to demand pyrites expired January 1, 1917.

On January 8, 1916, the plaintiff ordered defendant to ship to it 150 tons of ore per week until further advised, and this the defendant agreed to do. In the latter part of January, 1916, after only a small quantity of ore had been shipped, there was a cave-in at the mines of the defendant, which seriously interfered with the mines, and for a time practially stopped mining operations. Defendant gave plaintiff prompt notice of this condition, and that it would cause a suspension of shipments from five to six months. On July 27, 1916, defendant advised plaintiff that it expected to resume shipments at the rate of one car for every two under contract about the first week in September, and in the course of a few months it would be able to meet all demands. Letter in question is as follows:

"Beginning about the first week in September, we expect to be in a position to resume shipments of fines pyrites at the rate of one car for every two cars under contract for weekly delivery in January last, at the time of the accident at our mines, and gradually to increase our output each month until we fill all contracts. We would appreciate a line from you as to your immediate wants, to enable us to make as fair a distribution as possible. In the course of a few months we shall be able to meet all demands, and also to accumulate the usual reserve on our loading platform. We are sending a letter of like tenor to each of our customers and shall be glad to hear from you at an early date."

Upon receipt of this notice, plaintiff advised defendant that arrangements had been made by it to obtain sufficient ore for its purposes until January 1, 1917, and that, if the defendant preferred, it could begin shipping the balance of its contract January 1, 1917, or it would receive the ore any time be

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

(264 F.)

fore that date that suited the convenience of the defendant. question is as follows:

Letter in

"Answering yours of the 27th, we have secured ore enough to run us until January 1st. Therefore, if you have other customers who have not supplied themselves, it would be satisfactory to us for you to begin shipping the balance of the contract January 1, 1917; or, if you prefer, we can receive it any time before then that suits your convenience."

On August 1st the defendant again wrote plaintiff, thanking it very much for giving defendant a free hand in the matter, and advised it would begin shipping the balance due under the contract January 1, 1917. Letter is as follows:

"We are in receipt of yours of July 29th, and thank you very much for giving us a free hand in the matter of the shipment of the balance due you under our contract of October 21, 1915. For the present we will book your order to begin shipments on January 1, 1917, recognizing, of course, your right to call at any time before then for your share of our product."

Plaintiff had received 609 tons under this contract at that time, leaving a balance under the contract of 6,391 tons. Plaintiff wrote defendant in January, 1917, and, although some shipments were made, a request for increased shipments was made, and emphasized in February, 1917. On March 1, 1917, defendant wrote plaintiff that "we have quite a stock of ore on our loading platform ready for shipment, but are entirely without cars," and requested plaintiff to aid in securing cars. It further appears that during the month of March plaintiff undertook to aid the defendant in getting the necessary cars from the railroads. A number of letters and telegrams were exchanged, and there was a personal interview between the treasurer of the plaintiff and the treasurer of the defendant, in Richmond, in regard to the car situation, in order to obtain, if possible, cars for the shipment of pyrites. As a result of the efforts of plaintiff 19 cars were placed at the mines of the defendant for shipments to plaintiff on or about the 4th of April, 1917, and it further appears that the railroads agreed that 6 additional cars per day would thereafter be supplied. On April 4, 1917, defendant wrote plaintiff: "As by the terms of our contract with you of October 21, 1915, your right to demand pyrites expired on January 1, 1917, we very reluctantly advise that no further shipments will be made under it."

It appears that the cars caused to be sent to the defendant's mine by plaintiff, which had not been loaded, were then loaded and shipped out to other customers of the defendant. Thus it will be seen that since August, 1916, the defendant specifically agreed to ship during the year 1917 the balance due on this contract. In pursuance of this agreement it further appears that the defendant had repeatedly promised to ship rapidly, if cars could only be obtained.

It further appears that the treasurer of the plaintiff went to New York and had an interview with the treasurer of the defendant in order to ascertain, if possible, the meaning of the letter of April 4th. At this interview defendant. failed to give any reason as to its repudiation of the contract, but informed the treasurer of the plaintiff that it meant just what it said, and that no further shipments under the contract would be made. Immediately thereafter, this action was instituted.

It appears that the price of pyrites rapidly increased during the latter part of the year 1916, and it was very scarce in 1917. Such as was available sold on the market for about 25 cents per unit, whereas the price in plaintiff's contract was 92 cents per unit. It also appears from the evidence that there was delivered under the contract 1,793.34 tons, leaving a balance of 5,260.66 tons. It also appears that plaintiff used every effort, after the contract was repudiated, to purchase elsewhere the pyrites contracted for, but only succeeded in getting a small amount, which cost on the basis of f. o. b. Arminius delivery 25 cents per unit. It was shown by a number of witnesses that 25 cents Jer unit on a basis of f. o. b. Arminius delivery was a fair average market price of pyrites during the year 1917, and on a basis of a fair market value of 25 cents per unit, the damage sustained by plaintiff amounted to $33,895.35.

It was also shown by the evidence that the defendant made new contracts for the sale of its pyrites at more than double the price for which it agreed