Hoffman v. American Mills Co.

• Decision Date: 13 March 1923
• Docket Number: 167.
• Citation: 288 F. 768
• Parties: HOFFMAN et al. v. AMERICAN MILLS CO.
• Court: U.S. Court of Appeals — Second Circuit

288 F. 768

HOFFMAN et al. v. AMERICAN MILLS CO.

No. 167.

United States Court of Appeals, Second Circuit.

March 13, 1923

John B Doyle, of New York City (Harrison Clark, of New York City, of counsel), for plaintiffs in error.

Henry Uttal, of New York City, for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

We shall refer to the parties as below.

Below this case was tried and the questions of fact submitted to the jury, the court reserving the motion to dismiss the complaint. After the rendition of the verdict, it was not set aside, but the complaint was dismissed. The court stated in his opinion that he knew of no reason which should compel the setting aside of the verdict, and that, if he was wrong, the appellate court might direct that judgment be entered on the verdict and thus avoid a new trial. The case was here before (American Mills Co. v. Hoffman, etc., 275 F. 285) and was reversed for error in allowing the plaintiffs to amend their complaint upon the trial to the prejudice of the defendant and for the commission of errors in the cross-examination of the defendant's witnesses.

Thereafter amended pleadings were served. The amended complaint alleges the making of an agreement by which the defendant agreed to purchase '25,000 pounds of No. 1200 Thrush brown paper twine, as per sample, put up on five-pound fiber spools, at 30 cents per pound, f.o.b. New York City, payment net thirty days from delivery, or less two per cent. discount, if payment thereof were made within ten days from the date of delivery; delivery to be made within a reasonable time after the date of said agreement. ' It alleges that the plaintiffs were ready, willing, and able to perform, and on December 13, 1918, delivered to the defendant 2,677 pounds and before delivery of any of the balance, on January 2 1919, the defendants repudiated the contract and notified the plaintiffs it would accept no more deliveries. The goods could not be readily resold at a reasonable price, so it is alleged, and the plaintiffs offered to deliver the balance, which was refused, and it was thereafter stored and held by them for the defendant's account and as its bailees. The goods so stored amounted to 2,566 pounds of twine as per sample, put upon five-pound fiber spools, all said to be in compliance with the contract and the agreed price of $7,519.81, for which judgment was demanded. The making of the agreement to purchase was admitted by the answer, but it was denied that the amended complaint correctly stated the terms of the agreement, and it was said that the sale was of paper twine of the width of nine-sixteenths to three-eighths of an inch and of a basis weight of 20 to 25 pounds, upon the sample exhibited by the plaintiffs of certain description or specifications to which the plaintiffs warranted the merchandise delivered, would be equal in all respects, and that they broke this agreement by delivering merchandise which did not correspond with the sample and description and warranty, and that because of this it was rejected by the defendant.

The plaintiffs' place of business is in New York City, and the defendant's in Atlanta, Ga. The plaintiffs' agent in October, 1918, solicited a sale of twine of the defendant at Atlanta, and submitted to the defendant's purchasing agent a sample ball of twine. This has been referred to as the 'Thrush Brand' twine. A sample piece was taken from this ball by the purchasing agent and returned to the plaintiffs, and after some further negotiations, a purchase order was sent by the defendant to the plaintiffs on October 11, 1918. This order provided for '25,000 pounds No. 1200 Thrush brown paper twine, as per sample, put up on five-pound fiber spools, at 30 cents per pound. ' The order contained the provision that it expressed the entire contract between the parties and the cancellation clause which is favorable to the buyer. Objections were made by the plaintiffs on October 19, 1918, and they asked to have stricken from the order the cancellation clause to which, on October 22, 1918, the defendant's agent replied as follows:

'Hoffman-Corr Mfg. Co., 594 Broadway, New York, N.Y.-- Gentlemen: Mr. Florence has shown us your letter addressed to him under date of October 19th, having reference to our order for 25,000 pounds of the brown paper twine.

'However, be advised that the sample which you advised was being inclosed was not inclosed.

'In consequence of which we attach hereto a small sample of the twine submitted by your Mr. Florence representing the No. 1200 Thrush twine, or brown paper twine, and against which we placed our order.

'This you will notice is a very small twine made of paper of a width of probably 9/16 to 3/8 inch in a basis weight of about 20 to 25 pounds.

'If for any reason your understanding varies from this do not fail to advise us immediately.

'We also note the exceptance you take in several of the terms mentioned in our order, that is order being subject to cancellation for cause beyond the buyer's control, etc., and would say that it is agreeable to us for you to eliminate these conditions on the order in question.

'Do not fail to advise us relative to the inclosed sample immediately and oblige,

'Yours very truly,

American Mills Company.'

PTJ/EF

'At Your Service' A sample of the twine was inclosed in this letter to which was attached the tag reading as follows:

'Sample submitted by Mr. Florence as representing No. 1200 Thrush twine.'

Thereafter, on the 25th of October, 1918, the plaintiffs acknowledged receipt of the order and replied as follows:

'American Mills Co., Atlanta, Ga.-- Gentlemen: We are in receipt of your favor of the 22d instant relative to your order for 25,000 lbs. of brown paper twine. We note that No. 1200 is what is desired. We shall, therefore, proceed with the order, with the understanding that, as per your agreement in said letter of the 22d, clauses we mentioned in our previous letter shall be eliminated. We are going to ship No. 1200 Thrush brand twine, eliminating the clauses in question, and thank you for your order.

'(Signed) Hoffman-Corr Mfg. Co.'

Later, on October 28, 1918, the plaintiffs wrote the defendant stating as follows:

'American Mills Co., Atlanta, Ga.-- Gentlemen: We beg to acknowledge receipt of your order dated October 11th, No. S-188, calling for 25,000 lbs. of No. 1200 Thrush brand twine, as per sample, put up on 5 lb. fiber spools at 30c per lb., f.o.b. New York City, less 2 per cent. ten days, net thirty. Your order states that you will advise us shipping instructions after knowing point of shipment. These goods will be shipped from New York City. We therefore would request that you advise us immediately shipping instructions.

'Very truly yours,

Hoffman-Corr Mf'g Co.,

'EZ:M

by Edward A. Zabriskie.'

To which the defendant replied on the 1st of November acknowledging the letter of October 28th and advising that the goods were to be delivered to the Harris Warehouse, South street, New York City.

It is the claim of the plaintiffs that this correspondence, together with the sample of twine, constitutes the contract. Thereafter, the plaintiffs placed this order with their source of supply, the Cleveland-Akron Bag Company, and one of the plaintiffs testified as follows:

'Q. And did you see any of the goods when they came forward? A. Yes, sir.

'Q. When, for the first time, did you see any of them, if you recall? A. No, I cannot recall the exact date when they came in. I went out and examined some of the cases in our shipping room.

'Q. And were any of them opened? A. Yes, sir.

'Q. What did you do with regard to comparing the goods that came through from Cleveland? A. Compared them with spools that I had in the office at the time, and they were the same goods.

'Q. And you compared them with this sample, did you? A. Yes.

'Q. And what, if any, difference did you note between the two? A. There was no difference.

'Q. Was it the same as this sample? A. Yes.

'Q. Which has been marked in evidence here 'Exhibit No. 9'? A. Positively.'

Exhibit 9 was the sample sent forward by the defendant to the plaintiffs in the letter of October 22d. This witness testified further that the goods were billed to the defendant and shipped to the Harris Warehouse, New York City. He further testified that after the goods were all shipped to this warehouse, he saw them at the warehouse accompanied by the attorney for the defendant. They were then examined and were found to be the same as the sample.

'Q. In other words, that the goods as actually delivered in the Harris Warehouse were the same as this sample? A. Yes, sir.'

It thus appears that there was a tender by the plaintiffs to the defendant of the requested quantity of the goods, and delivery was within the time. The court submitted to the jury the question of whether the sale was by sample or sample and description, and thus permitted the jury to pass upon the...