Alabama Grocery Co. v. Hammond

• Decision Date: 19 December 1922
• Docket Number: 3923.
• Citation: 285 F. 723
• Parties: ALABAMA GROCERY CO. v. HAMMOND. [1] In re JOBBERS' OVERALL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F. 723

ALABAMA GROCERY CO. v. HAMMOND. ^[1]

In re JOBBERS' OVERALL CO.

No. 3923.

United States Court of Appeals, Fifth Circuit.

December 19, 1922

John S Stone, John S. Coleman, and Ernest L. All, all of Birmingham Ala. (Haley & Haley, and Tillman, Bradley & Baldwin, all of Birmingham, Ala., on the brief), for plaintiff in error.

E. H Cabaniss and Jelks H. Cabaniss, both of Birmingham, Ala. (Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, Ala on the brief), for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

This suit was brought by the Jobbers' Overall Company, a Virginia corporation, against the defendant, the Alabama Grocery Company, an Alabama corporation. Pending suit the plaintiff was adjudicated a bankrupt, and the trustee in bankruptcy was substituted as plaintiff. Plaintiff obtained judgment for the purchase price of certain goods, and the defendant assigns error.

The defense at the trial was based upon alleged misrepresentations of the overall company to the effect that it had no other jobber in Birmingham and that it did not permit jobbers to cut prices fixed by it. This issue was submitted to the jury, with the instruction that, if they found for the plaintiff, the measure of damages would be the purchase price of the goods as of the time they were contracted to be delivered. The contract of purchase was entered into on May 29, 1920, and provided for delivery on September 30, 1920. The description of the goods in the contract was as follows:

Lot No. Doz.

840 . . . 500

90

64 . . . 100

44

This contract was executed on behalf of the overall company by its agent. It was acknowledged a few days later by the company by a letter in which a description of the goods appeared as follows:

No. 840 and

90 . . . 500 doz.

64

44 . . . 100 '

The price upon each lot of overalls was different. At the time provided in the contract the overall company shipped equal amounts of lots 840 and 90, and of lots 64 and 44, being 250 dozen each of the first two lots, and 50 dozen each of the two last-mentioned lots. The defendant received the letter of the overall company and made no complaint of its allotment of the goods to be shipped. August 4, 1920, defendant requested cancellation of the contract, but its request was promptly refused. August 13, 1920, defendant stated in a letter to the overall company:

'There is no way possible for us to place these overalls at the present time, and we, therefore, are compelled to ask you to cancel same,' and 'we realize that we cannot take on the quantity of overalls that we were induced to believe could be sold in this market. We are therefore taking the matter up with you at this time, notifying you of our intention and decision, and hoping that we can reach a satisfactory adjustment of the matter.'

The overall company replied, again refusing to cancel the contract. The evidence discloses that the goods had been made up and were ready for shipment before the requests for cancellation were made, and they were promptly shipped by the overall company in accordance with the contract, but were invoiced at the market price, which was less than the contract price. The defendant refused to accept the goods and they were thereupon stored for it by the overall company. The defendant pleaded the general issue, reserving the privilege to prove any defense it might have.

It is contended here that, because the citizenship of the Overall company was not proved as alleged, the trial court was without jurisdiction. It is sufficient to say that the burden was on the defendant to prove that the allegation of citizenship was untrue, and that therefore this contention is without merit. Fourth National Bank v. Portsmouth Cotton Oil Refining Corporation (C.C.A.) 284 F. 718 (decided October 30, 1922) . On the merits, it is contended that no binding contract arose out of the transaction between the parties, because the goods were not accurately described, and that, if they were, the goods shipped were not those described in the contract, and that the court applied the wrong measure of damages. We are of opinion that the description of the goods is sufficient when considered in connection with the conduct of the parties. In the first place, it is not to be assumed that the parties did not contemplate the purchase of some of the goods of each lot. They were not attempting to do a vain thing, and effect must be given to the contract if upon a reasonable construction that can be done. The goods were all of the same general description, and it is apparent that the right of selection out of the various lots was recognized. If the...