(274 F.) [3] It is insisted upon the part of the plaintiff in error that, after the breach of the contract by it, it entered into an agreement of accord and satisfaction with the plaintiff by the terms of which it was to secure from the Paige-Jellico mines a contract for the plaintiff for a large quantity of coal at much less than the market price. It appears from the evidence that the defendant coal company was not the owner of the Paige-Jellico mines, but that some of defendant's stockholders were so largely interested in the Paige-Jellico Company that it was able to influence the conduct of its business, and that the defendant, through Mr. Jewett, its president, offered to Mr. Brennan, purchasing agent of the plaintiff, a contract with the Paige-Jellico Company for a large amount of coal at much less than the then market price. Mr. Jewett testifies in reference to this as follows: "I went up and saw Mr. Brennan about the contract with the Paige coal. That would, I imagine, mine about 50,000 to 60,000 tons a year. I told him I had appreciated that we had fallen down on the contract for the delivery of coal, which we could not help. I told him by purchasing this coal he could make up any losses that he was in for on this present contract, and I not only told Mr. Brennan that once, but I told him three or four times, and the contract was decidedly under the market price at that time." In answer to the question why he was offering this contract under the market price, Mr. Jewett answered: "Why, to make up the shortage on our present contract." Mr. Jewett further testified that he had two or three conversations with Mr. Brennan covering a period of two or three weeks, and urged him to sign this contract, and that eventually the contract came back signed by Mr. Brennan, as purchasing agent for the Detroit Edison Company. The court, however, excluded this evidence, and charged the jury in reference thereto as follows: "I charge you as a matter of law that under the undisputed proof in this case the so-called Paige-Jellico contract was not a settlement of this contract. The language used in connection with that, in entering into that contract by the plaintiff with another corporation, although it was closely related to this defendant, that the language used there, and what occurred, does not amount to a settlement of these differences." This charge, in view of the testimony of Mr. Jewett, to which attention has just been called, was clearly erroneous and prejudicial to plaintiff in error. If the jury believed this testimony of Mr. Jewett that he tendered this contract for the Paige-Jellico coal to Mr. Brennan at less than the market price, upon the condition stated, and that although Mr. Brennan did not then accept his proposition, but later signed and returned this contract and received the benefits thereof, it might very properly reach the conclusion that the contract was signed and accepted and the benefits received by the Edison Company under the terms and conditions proposed by Mr. Jewett. Even if the jury had not found that the Paige-Jellico contract was accepted by the plaintiff as a full accord and satisfaction of the damages it sustained by reason of the failure of the defendant to deliver coal under its con tract, nevertheless it might have found from this evidence, that whatever benefits inured to the plaintiff company under the Paige-Jellico contract should be considered in mitigation of damages, and at least a defense pro tanto. [4] It is also insisted upon the part of the plaintiff in error that the court erred in excluding evidence of a custom in the coal business, well known to the parties to this contract, when a shortage of cars occurs, to prorate the available cars in the shipments made upon existing contracts. A custom, to control the construction of a written contract, must be reasonable, and not contrary to law or public policy, or opposed to any express terms of the contract, and must be so general as to justify the presumption that the parties contracted with reference thereto. Both the contract for the 6" run of mine coal and the contract for the 2" nut and slack expressly provide that the amount of coal named therein shall be shipped to the Edison Company, "if during any month or months covered by this contract period there shall have been mined the amount scheduled or more tons of coal at the mines mentioned herein." A custom that would permit the prorating of cars among the various customers of the plaintiff in error would be in direct conflict with this provision of the contract that the Edison Company was to have all of the coal of the character named, mined at these mines, if such total output was necessary to meet the contract requirements, and that, if less coal were mined during any one month than the amount named in the schedule, then the defendant would not be liable in damages, provided it shipped the entire output to the Edison Company. For this reason, this custom of prorating cars, no matter how well known to the parties, cannot be permitted to vary or alter the express terms of these contracts that are clearly in conflict therewith. The Gazelle and Cargo, 128 U. S. 474-486, 9 Sup. Ct. 139, 32 L. Ed. 496; Jenkins S. S. Co. v. Preston, 186 Fed. 609-612, 108 C. C. A. 473. The shortage of cars is important only in its effect upon the production of the character of coal named in the contract, at the mines mentioned therein. This contract fully protected the defendant in case sufficient coal was not mined, regardless of the reason for the failure to mine the same. It is further claimed by the plaintiff in error that the performance was rendered impossible by reason of the embargo placed by the Louisville & Nashville Railroad Company upon all shipments of its cars to points off its own line. It is wholly unnecessary to consider whether the impossibility of performance arising from such a cause would relieve this plaintiff in error from the obligations of its contract, for the reason that it clearly appears from the evidence that this embargo did not render performance impossible. On November 1, 1916, the coal company wrote the Edison Company a letter in reference to the danger of the railroad company declaring such an embargo. The following paragraph is a part of that letter: "I think that we had better do all we can now to get cars from other lines here that we can send to designated mines, and have them loaded promptly for your contract. I hope you will do everything you can along this line to see if equipment cannot be gotten." (274 F.) It is true that the coal company also wired the Edison Company on March 17, 1917, that the Louisville & Nashville Railroad Company had placed an embargo against all shipments to points off their own line, and in this telegram made the further statement: "Which means it will be impossible for us to ship any more coal to you until this restriction has been lifted." Nevertheless, from the statement in its letter of November 1, 1916, the plaintiff in error cannot now be heard to say that it was not possible to procure cars from other lines, or that it was not fully advised of such possibility. Therefore the evidence in this record presents` no question of impossibility of performance. In view of this court's construction of the provisions in these contracts as to liquidated damages, the charge of the court in reference to the duty of the plaintiff to mitigate its damages becomes wholly unimportant. For the reasons above stated, the judgment of the District Court is reversed, and the cause remanded for further proceedings in accordance with this opinion. APPLEBAUM v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. April 15, 1921.) No. 2860. 1. Criminal law 600 (1), 1052-Refusal of continuance held not to require reversal. A conviction for crime will not be reversed because of refusal to grant a conunuance on account of the absence of a witness, where no exception was taken, and where the court, with the district attorney's consent, permitted defendant to read to the jury as evidence a written statement of what the witness would have testified to if present, and the prosecution introduced no evidence to contradict the statement. 2. Receiving stolen goods 3, 7 (2) -Intention to convert to own use is not essential, and need not be alleged. Though a receiver of stolen goods cannot be convicted, unless he intended to deprive the owner of the possession of the goods, an intention by the receiver to convert the goods to his own use is not essential, and an indictment which charged that the possession was unlawful and felonious is not bad for failure to charge an intention to convert to defendant's use. 3. Criminal law 1038 (3), 1056 (1)-Exceptions and requests essential to review of incompleteness of instruction. Where accused took no exceptions to the instruction and made no requests, and the charge was correct so far as it went, the conviction will not be reversed because the charge was not more explicit in places. 4. Criminal law 731-Functions of judge and jury are the same as in civil cases. In the trial of a criminal charge, the respective functions of the judge and jury are the same as in civil trials, though the burden of proof is different. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 5. Criminal law ~935(1) —Right to set aside verdict on weight of evidence discretionary with trial judge. In criminal trials, as well as in civil, the right to set aside the verdict of the jury on the weight of the evidence is within the discretion of the trial judge, who heard the testimony while it was being presented to the jury. 6. Constitutional law 316-Review is not essential to due process. All the requirements of due process of law in a criminal prosecution are met in the trial court, and Congress was not required by the Constitution to provide for any review in such cases. 7. Criminal law 1159 (3)—Reviewing court is limited to questions of law. The court reviewing a conviction for crime, is limited to questions of law, which include the question whether there is evidence to establish each essential element of the offense charged, but do not include the question whether the verdict is against the weight of conflicting evidence. In Error to the District Court of the United States for the Eastern District of Illinois. Ike Applebaum was convicted of having felonious possession of property stolen from an interstate shipment, and he brings error. Affirmed. Certiorari denied, 255 U. S., 41 Sup. Ct. 625, 65 L. Ed.-. C. B. Thomas, of East St. Louis, Ill., for plaintiff in error. BAKER, Circuit Judge. Applebaum was convicted of having felonious possession of property stolen from an interstate shipment. [1] Complaint is made of the court's refusal to grant a continuance. on account of the absence of a witness. No exception was taken; and furthermore the court, with the district attorney's consent, permitted defendant to read to the jury as evidence a written statement of what the witness would have testified to if present. And as the government introduced no evidence to the contrary, the written statement stood as uncontradicted testimony. [2] Though the indictment charged that defendant, knowing the property to have been stolen, had "unlawful and felonious possession," defendant contends that the indictment is bad because it failed to allege that he had the property in his possession "with the intention of converting it to his own use." No such conditioning element is found in the statute. Of course a person should not be condemned for having innocent possession of stolen property, for example, for the purpose of turning it over to the true owner or to the public authorities. But a knowing possession for the benefit of the thief or any knowing possession with the intent and effect of depriving the owner of his property would be a felonious possession. [3] No exceptions were taken to the instructions, and defendant made no requests. It is conceded that the charge is correct as far as it goes, but the suggestion is offered that the jury may have been misled because the charge was not more explicit in places. If reversals. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (274 F.) may thus be obtained, refraining to ask explicit instructions would become a sure anchor to windward against convictions. Defendant's real reliance for reversal is on the alleged insufficiency of the evidence. For the government the evidence was largely circumstantial. From a broken-open car and the absence of goods shown to have been loaded therein, the jury, we must assume from their verdict, inferred the theft. Railroad detectives testified to following wagon tracks from the plundered car into defendant's barnyard and to finding in defendant's barn property of the same kind and amount as that which had been stolen. When defendant, in his store at the front of the yard, was asked by the detectives concerning property missing from the railroad car, defendant, according to the detectives, was evasive until it became apparent that they knew of similar property in his barn. He then claimed that he had bought it of Weisman, a feed merchant. His attention was called to cinders among the feed. He then admitted that he had not obtained it from Weisman, but claimed that his horse and wagon had been taken during the night without his knowledge or consent, that he had found his rig in the barnyard in the early morning, that the feed was then in the wagon, and that he had put the feed in his barn to protect it. When asked why he had not notified the police, he replied that he had not had time, though the interview with the detectives was several hours after the feed had been put in the barn. And finally "he wanted to know if he couldn't square this thing up without its going any farther and without taking it up in court.' On behalf of defendant the jury had to consider his previous good reputation, the presumption of his innocence, his explicit denial of every incriminating circumstance against him adduced by the government, and the undisputed testimony (in the statement of the absent. witness, the wife of the chief of police) that he had telephoned to the home of the chief of police soon after he found the feed in his wagon and before the detectives came to interview him, but without stating the purpose of the telephone call or leaving any message. Defendant's proposition is that, if the members of an appellate court, after a careful study of the transcript of the evidence, entertain a reasonable doubt of the defendant's guilt, a reversal of the judgment must follow. Such may be the rule or method in some state tribunals; but in making that urge here we think defendant is misapprehending the respective functions of the jury, of the trial judge, and of the reviewing judges, in federal procedure. And since the same contention is being made with some frequency, we deem it advisable to state briefly those respective functions. [4] When a conflict in evidence in a civil case is submitted to the jurors for their determination of the truth of the issues of fact, the trial judge instructs them that they cannot find for the plaintiff unless the preponderance of the evidence establishes the issues in the plaintiff's favor, and, in a criminal case, that they cannot find the defendant guilty unless on considering the presumption of innocence and weighing all the evidence they find that guilt is established beyond a reason |