ADAMS TOP-CUTTING MACH. CO. v. WILDMAN MFG. CO.

ADAMS TOP-CUTTING MACH. CO. v. WILDMAN MFG. CO. (Circuit Court, E. D. Pennsylvania. June 9, 1906.) No. 35. New Trial — Grounds—Waiver. Whore evidence as to loss of profits was introduced by both parties in an action for breach of contract, and fully argued and submitted to the jury without objection and under instructions to which no exception was taken, the question of the right to recover such profits as an element of damages cannot be raised by defendant on a motion for new trial. [Ed. Note.- — Eor cases in point, see vol. 37, Cent. Dig. New Trial, §§ 62-66.] On Motions by Defendant for a New Trial, and for Judgment on Reserved Point, Notwithstanding the Verdict. Boyd Dee Spahr and Ellis Ames Ballard, for plaintiff. Jere B. Darzelere, Jr., and Dimner Beeber, for defendant. [MAJORITY — J. B. McPHERSON, District Judge.] J. B. McPHERSON, District Judge. The reserved question must certainly be determined, T think, in favor of the plaintiff, for there was a considerable body of evidence, contradicted, no doubt, by evidence on the other side, to the effect that the defendant had broken its contract with the plaintiff, and should therefore be called upon to respond in damages. How much these damages should be was a matter to which both parties directed much attention. A great deal of evidence was taken upon this subject, it was elaborately argued to the jury as a question of fact, and no objection was made concerning their competency to decide it. This being so, I see no reason for interfering with their settlement of the controversy. The loss of profits was the principal item of damage claimed by the plaintiff, and, as the defendant interposed no objection at the trial to the instructions given by the court nor to the submission of the question to the jury, it is too late, in my opinion, to raise the question now whether it was proper either to hear evidence upon this subject or to permit the -jury to pass upon it. The motion for a new trial is overruled. The defendant’s motion for judgment notwithstanding the verdict is also refused, and to the refusal of the latter motion an exception is sealed.