Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
This case was here on a former appeal from a judgment entered on a verdict directed by the District Court. We reversed the judgment and awarded a new trial. On the new trial, the jury rendered a verdict for the plaintiff, and the defendant appealed. We affirmed the judgment. The defendant filed a petition for reargument, which was allowed, and the case is here on the reargument for a new trial.
On July 4, 1934, the plaintiff was killed in an automobile collision, and his sister, Martha Williams Bennett, has been substituted as plaintiff-appellee.
In support of its petition, the defendant says that the court below did not consider on the first trial, and refused to consider on the second trial the questions as to: (1) Whether or not the fact that the contract was under seal should make any difference in the result; (2) whether or not there had been an election of remedies by the plaintiff; and (3) whether or not plaintiff had failed to perform.
The trial court on the second trial submitted to the jury for its determination the following questions:
"(a) Was the appellant, the Pittsburgh Terminal Corporation, Hoffacker's undisclosed principal?
"(b) Was the appellee's claim barred by the Statute of Limitations?
"(c) Did the appellant, the Pittsburgh Terminal Coal Corporation, breach the contract of October 11th, 1924?
"(d) The court then instructed the jury, in the event the three preceding questions, as here stated, were answered in favor of appellee, then what were the damages resulting from the breach of the contract?"
The jury found the first three questions in favor of the appellee, and, under the evidence and the charge of the court, these findings settled these questions unless, as a matter of law, they are disturbed by the answers to be given to one or more of the three questions urged in this reargument which the court refused to consider in the second trial.
1. As to whether or not the fact that the contract was under seal makes any difference in the result, the appellant says that "one not a named party to a sealed instrument cannot be sued upon it in the federal courts."
The tendency of courts generally is to relax the rigor of common-law and technical rules because they are a bar in many cases to the administration of substantial justice, and in the case of seals the need for them has largely disappeared in modern times when public scholls and ...