CC Mengel & Bro. Co. v. Handy Chocolate Co., 1909.

• Decision Date: 26 January 1926
• Docket Number: No. 1909.,1909.
• Citation: 10 F.2d 293
• Court: U.S. Court of Appeals — First Circuit
• Parties: C. C. MENGEL & BRO. CO. v. HANDY CHOCOLATE CO.

10 F.2d 293 (1926)

C. C. MENGEL & BRO. CO. v. HANDY CHOCOLATE CO.

No. 1909.

Circuit Court of Appeals, First Circuit.

January 26, 1926.

Addison C. Burnham, of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for plaintiff in error.

Philip N. Jones, of Boston, Mass. (Hurlburt, Jones & Hall, of Boston, Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

This is an action for breach of contract. The plaintiff was the seller and the defendant the buyer of 50 tons of cocoa beans. The case was submitted to the District Court without a jury, and, without opinion or special findings of fact, that court entered judgment for the defendant.

The controlling facts are undisputed. The contract was in writing, as follows:

"Cocoa Contract to Arrive. "New York, July 7, 1920.

"Sold for Account of C. C. Mengel & Bro. Co. to the W. H. Miner Chocolate Co. Springfield, Mass.

"Quantity: Fifty (50) tons (5% more or less).

"Description: Usual good fair fermented Accra cocoa beans.

"Shipment: July-Sept. from the Gold Coast or via Liverpool or equivalent dely. from Whse. N. Y.

"Price: 13 3/8c. cents per pound. Terms: Net cash 10 days from weighing and delivery.

"To be taken promptly by buyers on arrival ex dock at the port of New York and N. Y. weights to govern, usual tare.

"Each shipment to be considered a separate contract. Should any import duty, internal revenue, or any other form of tax be levied by the U. S. government on the cocoa embraced in this contract, it shall be assumed and paid for by the buyers.

"In case of loss, destruction, or seizure of cocoa or any part thereof, or abandonment thereof or any part thereof to underwriters, after shipment, this contract for such portion to be void and the amount sold reduced accordingly; in case the cocoa or any part thereof be transshipped within a reasonable time and arrive by any other vessel or vessels, this contract for such portion to hold good.

"Sellers not liable for contingencies beyond their control.

"Quality to be inspected and passed upon by the undersigned.

"Snyder & Wheeler, Brokers.

"Brokerage 1 % of sale. This also applies to any portion lost or damaged at sea."

The italicized portions are written insertions in a printed form. On familiar principles such insertions are to prevail over any inconsistent provisions in the printed form. Hagan v. Ins. Co., 186 U. S. 423, 428, 22 S. Ct. 862, 46 L. Ed. 1229.

Cocoa intended by the seller for the buyer was shipped from the Gold Coast prior to September 30 by the steamship Tuckanuck. This shipment arrived in New York on December 15, and was properly rejected on December 18 by the buyer, because not of the specified quality. On the same day, the seller tendered the buyer the required quantity of cocoa from warehouse in New York. This tender was rejected by the buyer on December 20, in a letter, the pertinent part of which is as follows:

"We regret to advise that we are unable to accept a tender of 800 bags from store against this contract, you having previously notified the buyer that this cocoa was coming forward on the S. S. Tuckanuck afloat to New York. This cocoa duly arrived, was sampled and quality rejected by the buyers as not being up to contract requirements. In consequence of your having declared a specific lot, and this being duly tendered and rejected, does not give you the privilege of submitting or declaring another parcel.

"We submitted to you, by telephone, on Saturday proposition covering the 800 bags as tendered per S. S. Tuckanuck lately arrived. If you are not prepared to accept this, it will be necessary to cancel the contract."

It thus appears that the seller's second tender (from the warehouse) preceded any claim of the buyer of a right to cancel. Defendant treated the contract as valid and outstanding until plaintiff rejected its offer of a reduced price for the cocoa on the Tuckanuck. The seller insisted on its rights to make the warehouse tender, and brought this suit.

On October, and perhaps in September, 1920, the buyer had made repeated requests for speedy delivery of the cocoa from the warehouse. As a result of these requests the seller wrote, on October 19, a letter, the material parts of which are as follows:

"Referring to 50 tons of usual good fair fermented Accra cocoa beans sold to you for shipment from the Gold Coast July/September or equivalent delivery from warehouse New York, through Messrs. Snyder & Wheeler, under contract dated July 7th, 1920, we beg to advise you that this cocoa is now afloat on the steamship Tuckanuck and will be delivered to you ex dock New York upon its arrival."

But after receipt of this letter the buyer continued requests for delivery suggesting warehouse delivery. The seller declined to comply with these requests, but reiterated its intention to make delivery per shipment from the Tuckanuck. On October 28, 1920, the seller again wrote:

"As requested by you in your letter of October 27th, we beg to say that the 50 tons of fermented Accra Cocoa sold by us through you to the W. H. Miner Chocolate Company, Springfield, Mass., for July/September shipment from the Gold Coast is now afloat on the Steamship Tuckanuck.

"We have in our possession bills of lading dated Seccondee, West Coast Africa, August 31, 1920, and Accra, West Coast Africa, September 3, 1920, and the cocoa sold to the W. H. Miner Chocolate Company will be delivered from the lots covered by either of the above-mentioned bills of lading.

"We have been in touch with the steamship company, who inform us that the Steamship Tuckanuck will probably not arrive at the port of New York before November 15, 1920, and possibly will not arrive until after December 1, 1920."

As late as the latter part of October, the plaintiff was told by the broker (acting for the defendant) "that as this contract called for either a shipment or equivalent, that his time to perform against his equivalent was pretty near to the finish, and that he would have to show something; we cautioned him"; that after "the Tuckanuck had been declared * * * I explained * * * that the delay of this boat was a hardship on the buyer, and that, as they had cocoa in store, why didn't they let the buyer have some of that cocoa? He said, `No, the Miner Chocolate Company's cocoa is coming on the Tuckanuck, and they will have to wait for the Tuckanuck; we can't give them any store cocoa; they will have to wait until the Tuckanuck comes in.' That comment was made at least, I will go under oath, six different times."

The gist of the plaintiff's contention, saved by appropriate requests for rulings which the court below denied, obviously was that the contract permitted the plaintiff to perform by tendering the cocoa either from a July-September shipment from the Gold Coast, or by a warehouse delivery, substantially within the same time limit.

The defendant, on the other hand, contended that the plaintiff, by its letter of October 19, had finally elected the alternative of performing from the Tuckanuck, and that no other alternative was thereafter open to it.

A secondary contention of the defendant was that, if the alternative of delivery from the warehouse was after its letter of October 19, 1920, open to the plaintiff, the tender of warehouse delivery on December 18 was not seasonable under the terms of the contract. In support of this defense, the defendant offered, and the court admitted subject to the plaintiff's exception, evidence of an alleged custom limiting the term "equivalent delivery from warehouse" to a period, variously stated by the defendant's witnesses, but roughly ending about 30 days from the last permissible date of sailing from the Gold Coast, so that, if such custom was proved and applicable, the tender of warehouse delivery after the arrival of the Tuckanuck on December 15 would be too late.

To meet this evidence, the plaintiff offered, and the court below excluded, subject to plaintiff's exception testimony that the steamship Schoodic left the Gold Coast with a cocoa shipment prior to September 30, and yet did not arrive in New York until some three weeks after the arrival of the Tuckanuck.

It is difficult to determine upon what theory the court below went in admitting the evidence of custom in order to limit the time within which seasonable warehouse delivery might be made; for, at the plaintiff's request and subject to the defendant's exception, the court ruled that the defendant — by its letter of December 20, 1920, refusing the plaintiff's offer of warehouse delivery on the specified ground that the plaintiff had by its letter of October 19, 1920, made a final election of delivery from the Tuckanuck — had waived all other defenses. As the cocoa on the Tuckanuck was concededly not of the quality required by the contract, if this was the only tender that under the contract the plaintiff was entitled to make, it would seem immaterial whether the warehouse delivery subsequently tendered was or was not seasonable.

But we think the court erred in ruling that the defendant, by its letter of December 20, 1920, waived all claims of defense other than that the plaintiff, by notifying the purchaser that the goods were coming on the Tuckanuck, and by tendering goods from the Tuckanuck, was precluded from making any further tender. The defense that the tender of December 18 was too late was duly pleaded, and there was, on this record, neither estoppel nor waiver. "Waiver is an intentional relinquishment of a known...