Am. Fruit Prod. Co. v. Vinegar

• Decision Date: 27 November 1915
• Docket Number: No. 30430.,30430.
• Citation: 172 Iowa 683,154 N.W. 1031
• Parties: AMERICAN FRUIT PRODUCT CO. v. DAVENPORT VINEGAR & PICKLING WORKS.
• Court: Iowa Supreme Court

172 Iowa 683

154 N.W. 1031

AMERICAN FRUIT PRODUCT CO.

v.DAVENPORT VINEGAR & PICKLING WORKS.

No. 30430.

Supreme Court of Iowa.

Nov. 27, 1915.

Appeal from District Court, Scott County; A. J. House, Judge.

The plaintiff brought this action to recover the purchase price of certain carloads of vinegar sold to the defendant. There was a verdict and judgment for plaintiff, and defendant appeals. Reversed.Sharon & Higgins, of Davenport, for appellant.

Lane & Waterman, of Davenport, for appellee.

WEAVER, J.

Plaintiff's petition alleges first a sale of 80 barrels of vinegar to the defendant pursuant to a written contract. Said sale is alleged to have been made on or about December 19, 1911, but the shipment was invoiced as of January, 1912, and that of the agreed price of said vinegar there remains due and unpaid the sum of $200. In a second count plaintiff alleges the further sale to defendant of five other carloads of vinegar of 80 barrels each pursuant to the terms of a written contract, and that of the agreed purchase price there is due and unpaid the sum of $2,258.34. In a third count the defendant is charged with the alleged agreed price of a quantity of “Holly Brand Juice” sold to the defendant on its written order to the amount of $239.07, which is also due and unpaid. In an amendment filed pending the trial plaintiff further alleges that the shipments of vinegar for which payment is demanded were received and retained by defendant. The defendant admits the contracts mentioned in the petition and the sales made to it thereunder as alleged by the plaintiff, but denies that the goods delivered were of the guaranteed quality. It pleads no payments upon the purchases in addition to those credited in the petition. It pleads, however, a counterclaim for damages based upon an alleged warranty of the goods purchased and a breach thereof.

It is claimed by appellee in argument that defendant does not in fact allege any warranty of the goods, and at most alleges a failure of the goods to comply with plaintiff's representation or description. For reasons stated in a later paragraph of this opinion the objection cannot be sustained. The plaintiff denied the counterclaim, and upon the issues thus joined there was a verdict and judgment for the plaintiff, and defendant appeals.

I. The written contract declared upon in the second count is attached as an exhibit to the petition and is in the following form:

“Terms of Sale: 1% discount for cash in ten days; or net thirty days from date of invoice.

The American Fruit Product Company, of Rochester, N. Y., hereby agrees to sell and deliver as hereinafter specified to the Davenport Vinegar & Pickling Works, of Davenport, Iowa, on track at seller's mills in New York state, 1,000 barrels of A. F. P. Co. brand apple vinegar, in car load lots of not less than eighty barrels, as follows:

30% thereof before June 1st, 1912.

30% thereof between June 1st, and August 1st, 1912.

20% thereof between August 1st, and September 1st, 1912.

20% thereof between September 1st, and October 1st, 1912.

And the said the Davenport Vinegar & Pickling Works hereby agrees to purchase and pay for said apple vinegar 14 cents per gallon, package included, in accordance with the terms above stated, and to receive said apple vinegar at the times and in the quantities above specified.

Such apple vinegar is guaranteed to be 6 per cent. or 60 grains in strength, and to be the product of apples; also to comply with the national pure food laws. * * *

* * * The price is guaranteed against our own decline on any unfilled portion during period of this contract.

Signed in duplicate this 17th day of Nov., 1911.”

The contract mentioned in the first count is not set out, but the evidence tends to show it was identical with the one above quoted as to terms and conditions of sale. It appears that the contract mentioned in the second count was entered into before the delivery of all the vinegar under the first contract, for which payment is claimed in the case. Before any deliveries were made under the second contract and after the delivery of the carload mentioned in the first count of the petition the defendant notified plaintiff that the vinegar was not of the specified quality, and that chemical tests had shown it to be below the legal standard, and defendant would not undertake to put the product on the market. The correspondence growing out of this complaint was voluminous. Plaintiff having expressed its willingness to deliver vinegar which, when reduced by a given proportion of water, would conform to the requirments of the Iowa pure food statute, defendant forwarded its duplicate copies of the written contracts asking that such stipulation be inserted therein. To that request plaintiff responded as follows:

“May 9th, 1912.

We acknowledge receipt of your favor of the 4th inst., together with copies of your vinegar contracts with us, which we return herewith. We have no objection whatever in giving you a guarantee on the 60 grain vinegar that we ship you to apply on these contracts, but if we were to make any changes or additions to the contracts that have already been executed it would technically invalidate them, so to avoid any misunderstanding we can cover the subject by letter which will serve the same purpose and we believe will meet with your entire approval.

The only guarantee that we can give you on 60 grain vinegar is that we guarantee it to contain the required amount of solids or constituents to comply with all State and National Pure Food Laws when properly and accurately reduced to 40 grain strength, by the addition of pure distilled water. * * *

You may treat this letter as a supplement to the existing contracts if you so desire and you may be assured that every gallon of vinegar we ship you will contain the proper amount of solids to reduce to your standard strength.

Yours very truly,

American Fruit Product Co.,

W. F. Borncamp, Sales Mgr.”

Other vinegar being ordered after the date of the supplemental contract, defendant again complained that chemical tests showed it to be substantially identical with prior shipments which had been found unsatisfactory. Still other shipments were found satisfactory and so reported to plaintiff. Later defendant again complained that two carloads shipped in September, 1912, were materially below the agreed standard and said:

“We wish to advise you that we will not handle this kind of dope. We must have vinegar that will reduce to forty grains and still comply with the law after being reduced.”

After setting out in detail what it claimed to be a chemical analysis of the vinegar defendant further said:

“We wish you to understand right now that it is useless for you to send us any more vinegar that is not A-1 and comply with the law after reduction to 40 grains.

If you are not in a position to furnish us this class of goods, notify us at once and we will discontinue the sale of cider vinegar and let our customers know why. We are at a loss to know what to do with the cars now on hand. If you would send us a vinegar unusually high in the two elements in which the other falls short, we might be able to work in this vinegar. We bought and expect to pay for a first class article and we are getting extremely tired of this ‘working in.’ We are not being paid for doing this and we do not intend to inconvenience ourselves to meet any drafts. If necessary we could settle in full for the good vinegar we have used, but you have made matters very unsatisfactory for us. If you cannot get us the goods we have bought, we will pay for the good vinegar we have used and we will also find a place to dispose of the other vinegar, which does not come up to the standard, and we do not intend to sell it and leave ourselves liable either.”

In November, 1912, plaintiff shipped defendant still another carload, upon receipt of which defendant notified plaintiff by telegraph that:

The vinegar “was as murky as new cider and we cannot use it. Advise disposition of vinegar and what you intend doing about it.”

Plaintiff replied asking a sample of the vinegar which was sent. On the next day defendant wrote plaintiff confirming its telegram and saying among other things:

“This makes two cars that we have in our possession now, which we cannot use. Our floor space is limited and we have no storage room for goods that are not salable. We have taken in this goods and will do the best we can with it until you advise what disposition you wish made of it. We cannot use it nor would not use it if you were to make us a present of it. The putting out of this goods to our trade would ruin our reputation.”

Later plaintiff acknowledged the defective character of this shipment and asked that the car be reshipped to its address, and this was done. Later plaintiff addressed a letter to defendant as follows:

“Davenport Vinegar & Pickling Works, Davenport, Iowa--Gentlemen: Your inquiries for prices on vinegar addressed to Empire Cider & Vinegar Co., and the J. C. Beach Co., have been referred to us for attention. We own and operate these two mills, also six other mills in this state and presume you have taken the names of our constituent companies from some directory. After the trouble you have had with a few shipments of vinegar, the past season, we can appreciate fully your object in getting quotations from other mills, but we trust before placing your order for next season's requirements, you will reconsider the matter and give us an opportunity to make good our assertions that we can supply you with the right kind of vinegar that is not only pure but satisfactory in every respect.

We are frank to admit that some of the shipments made you this past season do not bear out this statement, but we can say to you candidly that never in the history of our business have we experienced this same trouble with any other customer and as we have previously stated, it is most unfortunate that you happened to be one...