Wilson v. Lewiston Mill Co.

• Decision Date: 13 October 1896
• Citation: 44 N.E. 959,150 N.Y. 314
• Parties: WILSON et al. v. LEWISTON MILL CO.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 314

44 N.E. 959

WILSON et al.

v.LEWISTON MILL CO.

Court of Appeals of New York.

Oct. 13, 1896.

Appeal from supreme court, general term, First department.

Action by Richard Thornton Wilson and others against the Lewiston Mill Company to recover damages for breach of contract. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiffs appealed to the general term, where the judgment was affirmed (see 26 N. Y. Supp. 847), and plaintiffs again appeal. Affirmed.

Treadwell Cleveland, for appellants.

Edward B. Hill, for respondent.

HAIGHT, J.

This action was brought to recover damages for an alleged breach of contract to purchase 1,000 bales of cotton of the plaintiffs, to be delivered to the defendant at Lewiston, Me. The answer contained a general denial, and an allegation to the effect that the alleged contract was within the Maine statute of frauds, and that by a custom of the cotton trade no contract of sale arose under an offer, unless accepted on the same day that the offer was made. The plaintiffs were cotton brokers engaged in business in the city of New York; the defendant, a manufacturing corporation located at Lewiston, Me. On the 1st day of November, 1890, one Hawley, in the employ of the plaintiffs as a salesman, called at the defendant'splace of business in Lewiston, Me., and had a conversation with its president and treasurer with reference to selling cotton. In his testimony he states the conversation as follows: ‘They had already bought a good deal of cotton, but that they were inclined to think well of the market, and that they would be pleased to buy more cotton, provided they would not have to pay for it before February 1st; that they had bought at present all that their bank facilities allowed them to pay for, but that by February 1st they would be in position to pay for the cotton, and if they could buy cotton, the payment of which would come at that time, they would be inclined to accept an offer. I told them we could do that by arranging to sell them cotton for January shipment, and I explained somewhat, also, our mode of operation, and the modus operandi of doing that. * * * After all that, they asked me to make an offer based on contracts, and I told them I would make such an offer; that we would base it in this way, and that we would send them an offer; that I would write to the firm, asking them to send them an offer based upon January contracts at a certain price, whatever that price happened to be at the time the firm made the offer; and that that, based on January contracts, would mean this: that if at the time when their reply to our offer reached the firm, if the market was higher by more than two points, we were not to be held by our offer, but that, if the market should be lower by as much as six points,-that is, 6/100 of a cent,-they were to have the cotton at 1/16 cent of a pound less than our offer.’ He then tells us that he forwarded to his firm, under date of November 1, 1890, the following letter:

‘Dear Percey: * * * While at Lewiston, I also saw Mr. Barker, the pres., and Mr. Parker, the treas. (Eustis has resigned; make change in spinners' book), of the Lewiston Mills. They have already bought 3,500 bales, all they can pay for at present, but are bullish, and would like to buy or engage a good part of the rest of the cotton. They need about 2,500 bales. I have arranged with them that you shall make them an offer of 500 B. C. middling, and 500 B. C. strict middling, all January shipment. Terms of payment cash on arrival, so as to bring payments in February. Make the offer, and say in your telegram to them, ‘Based on January contracts,’ whatever the price is on Monday; the understanding between them and me being that if they accept your offer, and January contracts are not more than two points above the figure named in your telegram, the sale is to stand, with the proviso, however, that, if January contracts are six points lower when you hear from them, the price is to be 1/16 cent below your offer. I will be in Lewiston about 3 p. m. Monday, but do not wait for that, but telegraph your best offer to them as early in the day as you can. If you can offer the middling @ 10 3/8, and the strict middling @ 10 1/2, I am quite sure they will accept, and they may do so if you make a round price at 10 1/2 cents. I do not think they will go higher than that. But, if you cannot get down to the figures I have named, make the best offer you can. This order, if we get it, can be filled from Alabama, Southwest Georgia, Mississippi, Texas, or Arkansas, at our option. Everybody I have met so far has had offers in hand of middling Texas at 10 1/4, and middling uplands at 10 cents to 10 1/8 cents. Mr. Barker, of the Lewiston Mills, handed me a telegram from Fowler, of Gadsden, Ala., offering him mid. at 10 cents; so Mr. Johnson had better hunt up another Gadsden correspondent for us, and scratch Fowler off our books. This letter goes in the train leaving here 5 p. m. Saturday, and should reach you early Monday morning. Having two such large (and I will add hopeful) trades in prospect, I concluded to remain in this vicinity over Monday. If nothing happens, I will leave here for Marysville 11 o'clock Monday night. I sent you a second telegram from here announcing my purpose of remaining here, and asking you to write to-day to this hotel. Yours, &c., F. B. Hawley.'

In answer to this letter, under date of November 3, 1890, the plaintiffs wired the defendant:

‘We will sell 500 middling and 500 strict middling, January shipment, 10 1/2 landed, based on January contracts nine sixty-three.’

Late in the afternoon of Monday, Hawley returned to the defendant's, and was there shown the dispatch received from the plaintiffs. He then had a further talk with the defendant's president and treasurer, in which, as he testifies, they finally made a bid of 10 3/8, and told him that he could transmit it to the plaintiffs, and that they could have until Wednesday noon to reply, and that, thereupon, he wrote the plaintiffs as follows:

‘Lewiston, Me., November 3, 1890. Dear Percey: * * * Here at Lewiston Mr. Barker had an offer from Blaisdell of mid. Texas at 10 1/8 cents. A week ago, when the contracts were some 30 points higher, Woodward & Stillman offered them mid. and strict mid., January shipment, at 10 1/2 cents. They would not, therefore, pay that price, nor even bid 10 7/16 cents, although I tried hard to get them to do so. They did, however, too late in the day to telegraph you, make me a bid of 10 3/8 cents for 500 B. C. mid. and 500 B. C. strict mid., terms and conditions same as those mentioned in my letter of Saturday. I saw your telegram to them offering them these cottons at 10 1/2 cents, based on January at 9 63/100, but 10 3/8 cents is just 3/4 cents above contracts, and certainly would seem to be a very good bid; but you can judge better than I both the tone of the market, and whether the already marvelous difference between contracts and spots is likely to widen. Remember this order can be filled with good staple Alabama and Mississippi as well as with Texas and Arkansas. As to-morrow is a holiday, I have not wired this bid to you, as you will not be at the office; and, as this letter goes to Boston at 11:30 tonight, it is sure to reach you early Wednesday morning. You are to reply to Lewiston Mills Wednesday morning. I hope you will be able to accept their bid for the 1,000 bales, and I do not think they will pay more, certainly not 10 1/2 cents; but, if you cannot accept, please so inform them by wire, and name a price at which you will sell. It is possible that they would come up 1/16 cent if the market is not lower when they hear from you. Yours, &c., F. B. Hawley.

‘You understand the Lewiston Mills bid is good until noon Wednesday, November 5th; that is, you are to telegraph at or before that time.’

In answer to this letter the plaintiffs wired the defendant, under date of November 5, 1890, as follows:

‘Your offer accepted, 10 3/8, 500 middling and 500 strict middling, January shipment, delivered Lewiston.’

And on the same day they wrote as follows:

‘New York, November 5, 1890. Lewiston Mills Co., Lewiston, Me.-Dear Sirs: We hereby confirm our sale to you of 500 B. C. mid., landed Lewiston, January shipment, cash on arrival, at 10 3/8 per pound, and 500 B. cotton st. middling, January shipment, cash on arrival, at 10 3/8 per pound. Thanking you for the order, yours, truly, R. T. Wilson & Co., per Walker.’

To which the defendant replied under date of December 5, 1890, as follows:

‘R. T. Wilson & Co., New York: We find it will be impossible for us to take the 1,000 bales of cotton mentioned in yours of the 5th ult., as it is impossible to get the funds. Our payments for the next three months are all we can meet, without taking any more burdens. The hope that the present stringency in the money market would cease soon seems certain not to be realized. Yours, truly, F. W. Parker, Treas.’

At the conclusion of the plaintiffs' evidence the defendant read in evidence the statute of frauds of Maine, together with the decision of the highest court of that state, made in the case of Jenness v. Iron Co., 53 Me. 20. The defendant then read in rebuttal the cases of Horton v. McCarty, Id. 394; Bird v. Munroe, 66 Me. 337; and Williams v. Robinson, 73 Me. 186. The letters written by Hawley to the plaintiffs, to which we have alluded, were offered in evidence, but, under objection of the defendant, were excluded.

This is, in substance, the evidence bearing upon the questions presented for review. The defendant moved for a direction of a verdict on the ground that no contract had been proved, binding upon the defendant, and upon the ground that it was in conflict with the laws of the state of Maine. This motion was granted, and an exception was taken by the plaintiffs. It is now contended that the contract was a New York contract, and not a Maine...