Allen-West Commission Co. v. Patillo, 820.

• Decision Date: 31 October 1898
• Docket Number: 820.
• Citation: 90 F. 628
• Parties: ALLEN-WEST COMMISSION CO. v. PATILLO et al.
• Court: U.S. Court of Appeals — Eighth Circuit

90 F. 628

ALLEN-WEST COMMISSION CO. v. PATILLO et al.

No. 820.

United States Court of Appeals, Eighth Circuit.

October 31, 1898

U. M Rose, W. E. Hemingway, G. B. Rose, and J. M. Moore, for plaintiff in error.

W. S McCain, Farrar McCain, H. A. Tilletts, and J. W. House, for defendants in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was an action at law, brought by the plaintiff in error against the defendants in error, to recover $2,732.50, with interest, charged for commissions alleged to be due from the defendants to the plaintiff of $1.25 per bale, on 2,186 bales of cotton which the plaintiff alleges the defendants filed to ship to it as a cotton factor and commission merchant at St Louis, Mo., pursuant to the terms of an oral agreement made and entered into by and between the plaintiff and the defendants in the early part of the year 1891. The plaintiff's petition contains the following allegations:

'And plaintiff alleges that, some time in the early part of the year 1891, defendants applied to plaintiff to transact their business as cotton factors and commission merchants at the city of St. Louis, and to make them advances of money to be used in their business from time to time, as the same might be needed, and agreed with the plaintiff, if it would make such advances, to ship plaintiff one hundred bales of cotton for every thousand dollars of spring and summer advances, and, if they should fail to ship amount of cotton, to pay plaintiff the customary commission of $1.25 per bale for each bale they might fail to ship, and further agreed to carry out said agreement as long as they should retain and have the use in their aforesaid business, of plaintiff's money and advances during the spring and summer, that thereupon plaintiff, during said year and subsequent years, transacted business with and for the defendants in their capacity as cotton factors and commission merchants, making them large advances of money for the purpose of enabling them to carry on their business and control that shipment or sale of the cotton of their customers. And plaintiff alleges that during the continuance of said business, down to and including the year 1893, it furnished defendants at stated periods, and at other times when requested, statements of the account between them, which were received by defendants without objection; that, at the end of the year 1893, plaintiff furnished defendants a statement of account showing a balance due it for advances made by plaintiff to defendants, and for commissions on cotton which defendants had theretofore failed to ship to plaintiff, under and in accordance with their aforesaid agreement; whereupon, shortly thereafter, defendants, without objection, paid plaintiff on account the sum of $2,996.27, leaving a balance due plaintiff of $2,504.75, which sum, with interest thereon, and the further sum of $508.53, due for commission on four hundred and seven bales of cotton, which, under the understanding and agreement between the plaintiff and defendants as aforesaid, defendants should have shipped to plaintiff during the season of 1893 and 1894, and did not ship, is now due by defendants to plaintiff. Plaintiff herewith files a verified account thereof, marked 'Exhibit A."

The defendants, in their answer, denied that they ever made the contract set out in the complaint, and denied that they agreed with the plaintiff, if it would make advances in money from time to time, that they would ship it 100 bales of cotton for every $1,000 advanced to them during the spring and summer by the plaintiff, and that, if they failed to ship the said amount of cotton, to pay plaintiff the customary commission of $1.25, or any other sum, per bale, for each bale they failed to ship.

Mr. James H. Allen, president of the plaintiff company, testified to the contract substantially as set out in the petition; and, in connection with his testimony, the plaintiff offered in evidence a number of letters written by the plaintiff to the defendants, in which defendants' attention was especially called to the agreement to ship a bale of cotton for every $10 of spring and summer advances, or pay the commission on the same. This is in a way denied by Mr. George W. Smith, the member of the firm of Smith, Patillo & Co. with whom Mr. Allen said the contract was made. In his testimony we find the following questions and answer in relation to the conversation had with Mr. Allen in the spring of 1891:

'Q. What was said about $1.25 per bale for that not shipped? A. If Mr. Allen said anything about that, I do not remember it. Q. When is the first time you heard of any agreement about paying $1.25 per bale for cotton not shipped? A. Mr. Exall and I had a talk about it. Q. You think there was no such contract with Mr. Allen when you and he talked over the matter? A. No, sir; I do not think there was. Q. He has said something about an understanding that if you did not pay him up that year, and he had to carry you over, you would ship him a bale of cotton for every $10, or pay him $1.25 per bale for the amount carried over? A. No, sir; if I ever made an agreement with Mr. Allen I do not remember anything out it.'

While Mr. Smith here seems to deny the contract; yet his answers indicate that he did not have a very distinct recollection of the conversation at the time he testified. However that may be, it is in evidence that as early as April 3, 1891, which was very soon after the conversation between Mr. Allen and Mr. Smith in St. Louis, the plaintiff wrote to the defendants, and in its letter referred to the conversation with Mr. Smith and the fact that he had guarantied, a bale of cotton for every $10 of spring and summer advances. Again, on the 29th of October, 1891, the plaintiff wrote to the defendants calling their attention to the agreement to ship a bale of cotton for every $10 of spring and summer advances, or pay commissions on the same. And on the 27th of May, 1892, defendants' attention was called to the amount of commission that would be charged on cotton not shipped under the contract, to which the defendants, on June 2, 1892, replied as follows:

'In reply to yours of late date, will say we answered your letter referred to, and stated that, as soon as you had sold all of our cotton, we would have a settlement, at which time would try and make our account satisfactory. The above statement we hope will reach you and be

...