Alton Mercantile Co. v. Booth Packing Co. of Baltimore, Md.

• Decision Date: 06 July 1918
• Docket Number: 21643
• Citation: 173 P. 1074,103 Kan. 412
• Parties: ALTON MERCANTILE CO. v. BOOTH PACKING CO. OF BALTIMORE, MD.
• Court: Kansas Supreme Court

173 P. 1074

103 Kan. 412

ALTON MERCANTILE CO. v. BOOTH PACKING CO. OF BALTIMORE, MD.

No. 21643

Supreme Court of Kansas

July 6, 1918

Syllabus

Where an order for the sale of goods on time is accepted, but the vendor thereafter refuses to fill it except for cash offering however a discount corresponding to the difference in time of payment, the buyer cannot refuse such offer and buy elsewhere, looking to the vendor for the difference in price, where the negotiations of the parties subsequent to the refusal to give credit resulted in an agreement to all the details of a cash sale, except that, while the buyer tendered his check in exchange for a bill of lading of the goods, the vendor refused to ship them unless the check should be certified.

Appeal from District Court, Reno County.

Action by the Alton Mercantile Company against the Booth Packing Company of Baltimore, Md. Judgment for defendant, and plaintiff appeals. Affirmed.

Fairchild & Lewis, of Hutchinson, for appellant.

F. L Martin, Van M. Martin, and John M. Martin, all of Hutchinson for appellee.

OPINION

MASON J.

The Booth Packing Company, of Baltimore, accepted from the Alton Mercantile Company, of Enid, Okl., two written orders for goods, one dated April 4, 1916, for 350 cases of canned sweet potatoes, at 75 cents a dozen, and the other, dated August 22, 1916, for 50 cases of canned spinach at 95 cents a dozen. Each order contained these clauses:

"Six months’ guaranty against leaks and swells from date of invoice-Usual allowance. Terms: Cash, less 1½ per cent. in ten days."

On November 13, 1916, the buyer wrote asking when the seller intended to ship the sweet potatoes. Three days later the seller sent an answer saying that it was ready to ship the goods in accordance with the contracts, but added:

"We will, however, only ship these goods for cash, but will allow you in addition to the discount of 1½ per cent. a further discount of ¼ per cent. which we trust will be satisfactory to you.

Please let us have specific shipping instructions and your check for the value of the above goods at your convenience, and promptly upon receipt of which we will let the goods go forward."

The following correspondence then ensued:

November 20th, buyer to seller:

"Answering yours of the 16th, we will want the sweet potatoes and spinach both labeled ‘The Alton Goods,’ and cases properly stenciled.

Please see that labels are not used on the ends of the cases.

These two items, together with the ‘Webster-Butterfield’ canned goods will complete a car which we would like to have forwarded Central Savannah line, Frisco, and upon receipt of bill of lading, we will be glad to remit you less 1¾ per cent. cash discount, which you have stated you will allow for immediate cash.

You cannot expect us to forward the cash unless the bill of lading is in our hands. We are at a loss to understand your unusual request for remittances to be made before the goods are forwarded, but we are perfectly willing to avail ourselves of the additional cash discount, although it should be 2 per cent.

You may be aware that some canners are allowing 2 per cent. for immediate cash or the usual 1½ per cent. if remittance is made in ten days.

We are very anxious for immediate shipment and trust that you will get the goods off to us at once.

If you do not care to forward us the bill of lading, you might forward it Griffith Brokerage Co., your agents, in Wichita, Kansas, and we will send them our check, which they can forward to you, delivering us the bill of lading.

Will you please explain your unusual request, as customary terms should certainly apply on this contract.

Be sure and include all of the labels belonging to us in the car. Let us hear from you by wire, please, as to when you will make shipment."

November 23d, seller to buyer:

"Replying to your letter of the 20th, we are inclosing herewith an invoice for the sweet potatoes and spinach we have sold you, on which we have allowed you 1¾ per cent. cash discount. As soon as we receive your certified check for this amount we will let the car go forward."

December 1st, buyer to seller:

"We are sending check to the National Exchange Bank, Baltimore, for $600.51, to be given to you when you deliver them bill of lading covering shipment of the sweet potatoes and spinach. Please see that the cases are properly stenciled and that labels are not used on the ends of the cases and also include in the car the Webster-Butterfield canned goods and all labels and stencils that you have belonging to us.

Please route Central Savannah line, care Frisco.

You stated in your letter, November 23d, that you would forward the goods on receipt of check, but we do not care to send it to you, as you might never ship them after receiving the check. We have just as much reason to doubt your honesty as you have to doubt ours, so we do not intend to put the check in your hands until the bill of lading is furnished.

If you do not handle it this way, this is our last offer and we will then file suit immediately for the fulfillment of your contract."

December 4th, seller to buyer:

"We are in receipt of your letter of the 1st. The National Exchange Bank advised us today that they have received your check for $600.51.

It is perfectly agreeable to us to deliver to them the bill of lading covering your order of sweet potatoes and spinach, together with goods from Webster-Butterfield Co., but before delivering them this bill of lading it will be necessary for them to be able to deliver us a certified check for the above amount. If you will refer to our letters you will find that this is the request we made upon you, namely, to forward us certified check. Immediately we are notified by the National Exchange Bank that they have received your certified check for the above amount we shall be pleased to comply with your request."

The buyer then sued the seller for breach of contract. The case was submitted upon the facts already stated and upon admissions that ...