California Prune & A. Growers v. El Reno Wholesale Gro. Co.

• Citation: 15 F.2d 839
• Decision Date: 09 November 1926
• Docket Number: No. 6861.,6861.
• Parties: CALIFORNIA PRUNE & APRICOT GROWERS, Inc., v. EL RENO WHOLESALE GROCERY CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

15 F.2d 839 (1926)

CALIFORNIA PRUNE & APRICOT GROWERS, Inc., v. EL RENO WHOLESALE GROCERY CO.^*

No. 6861.

Circuit Court of Appeals, Eighth Circuit.

November 9, 1926.

Milton D. Sapiro, of San Francisco, Cal. (Sapiro & Hayes, Sapiro & Levy, Sapiro, Levy, Hatfield & Hayes, and Sapiro, Levy & Hayes, all of San Francisco, Cal., and Embry, Johnson & Tolbert, of Oklahoma City, Okl., on the brief), for plaintiff in error.

W. F. Wilson, of Oklahoma City, Okl. (Wilson, Tomerlin & Chandler, of Oklahoma City, Okl., on the brief), for defendant in error.

Before STONE, KENYON, and BOOTH, Circuit Judges.

STONE, Circuit Judge.

This is an action on contract to recover for failure to accept and pay for prunes shipped by the seller from California to the purchaser in Oklahoma. At the close of the plaintiff's evidence, the court directed a verdict in favor of defendant for the reason that the contract was unenforceable because lacking mutuality.

The contract was written. It was executed on May 18, 1920, and provided for the sale and purchase of described quantity and quality of prunes to be delivered during October and November, 1920, at El Reno, Okl. The prunes were to be of the 1920 crop, the price was to be "firm at seller's opening prices, said prices guaranteed against seller's own decline until January 1, 1921." The terms were f. o. b. shipping point, draft to be accompanied by bill of lading. The trial court thought that the contract lacked mutuality in connection with the prices because it deemed those prices to be entirely within the control of the seller.

The first question presented to us is whether the answer of defendant to the amended petition was such as to permit the above defense. This point was presented to the trial court which ruled that a portion of the answer constituted a general denial; that, under the Oklahoma rule, a party was permitted to plead in the alternative and that lack of mutuality might be shown under a general denial. We deem it unnecessary to determine this matter of pleading because we think the evidence in this record sustains the contention of plaintiff in error that defendant in error is estopped by its conduct to rely upon this defense.

The elements of an estoppel in pais have been too often stated by this and other courts and are too well established and known to justify elaboration here. A concise statement of those elements, in so far as applicable here, is sufficient. Such elements are: ignorance of the party claiming the estoppel of the matter attempted to be asserted; silence concerning that matter where there is a duty to speak; action by the party upon the apparent situation and resulting damage if the estoppel is denied. McCullough v. Satterthwait, 11 F.(2d) 111, 114 (this court); Dustin Grain Company v. McAllister, 296 F. 611, 615 (this court); Dickson v. Neal, 2 F. (2d) 533, 536 (this court); Blakemore v. Lewelling, 281 F. 952, 958 (this court); Detroit T. & I. R. Co. v. Detroit & T. S. L. R. Co. (C. C. A.) 6 F.(2d) 845, 853 (6th Circuit); Lamborn v. Hardie Co. (C. C. A.) 1 F.(2d) 679, 681 (6th Circuit); First Federal Trust Co. v. First National Bank, 297 F. 353, 356 (9th Circuit).

This contract was executed on May 18, 1920, for delivery during October and...