American Cotton-Oil Co. v. Kirk

• Decision Date: 09 July 1895
• Docket Number: 198.
• Citation: 68 F. 791
• Parties: AMERICAN COTTON OIL CO. v. KIRK et al.
• Court: U.S. Court of Appeals — Seventh Circuit

68 F. 791

AMERICAN COTTON OIL CO. v. KIRK et al.

No. 198.

United States Court of Appeals, Seventh Circuit.

July 9, 1895

This is an action brought by James A. Kirk and others, partners doing business at Chicago, against the American Cotton Oil Company, a corporation of Ohio, doing business at Cincinnati to recover damages for the nondelivery of a certain quantity of cotton-seed oil according to contract. The declaration set out the contract substantially as the plaintiffs' evidence tended on the trial to show, it, as follows 'That the plaintiffs, at the request of the defendant bargained with the defendant to buy from the defendant, and the defendant then and there sold to the plaintiffs, a large quantity, to wit, ten thousand barrels of prime yellow cotton-seed oil, at the price of thirty-two and one-half cents for each gallon thereof, to be delivered by the defendant to the plaintiffs, at Chicago, to wit, at the district aforesaid, in such quantities per week as the plaintiffs should desire, with the option to the plaintiffs of taking said ten thousand barrels of oil in tank cars loose instead of in barrels, at the price of thirty cents for each gallon thereof; and in consideration thereof, and that the plaintiffs had promised the defendant, at the defendant's request, to accept and receive the said oil, and to pay the defendant for the same at the price aforesaid, the said defendant, on the day first aforesaid, at the district aforesaid, promised and the plaintiffs to deliver the said oil to them as aforesaid. ' The defendant insisted that the contract, instead of being for the sale and delivery of 10,000 barrels at the price named, until the entire 10,000 barrels should be delivered as the plaintiffs might desire and request, whether during the year 1892 or afterwards, was one simply for the sale and delivery of so much oil as the plaintiffs might order from time to time during 1892, not exceeding, 10,000 barrels, at the price named. The plaintiffs testified that the contract was as stated in the declaration. Wallace F. Kirk, one of the plaintiffs, testified that Kirk & Co., had long been manufacturers of soap in Chicago, and had for many years prior to 1891 purchased oil from defendant, through Henry Bausher, the agent; that on December 23, 1891, witness, acting for Kirk & Co., concluded with Bausher an agreement whereby Kirk & Co. bought from defendant 10,000 barrels of oil at 32 1?2 cents per gallon, or 30 cents if taken in tanks; that the oil was to be delivered, and Kirk & Co. were to take it, in such quantities per week as they might desire, and were to pay therefor 10 days after its receipt; that there was no limitation whatever upon the time in which Kirk & Co., were to receive the oil. They could, by the agreement, insist upon the delivery of the oil from time to time for the next three or four or five years. This witness also testified that, at the time the agreement was made, on December 23, 1891, he reduced it to writing in the presence of Bausher, who read it over two or three times. Thereupon, the witness produced a book, containing, as he said, the memorandum in pencil so made and read over by Bausher, which memorandum was read in evidence, and was as follows:

'Dec. 23, 1891.

'American Cotton Oil Co: 10,000 bbls. prime yellow cotton-seed oil at thirty-two and a half cents per gallon, delivered in Chicago, with the option of taking the 10,000 bbls. in tank cars loose at thirty cents per gallon. Deliveries to be made per week at Kirk & Co. desire. Payments ten days after arrival of oil at our works. This purchase made through H. Bausher, Jr., agent.'

The evidence for defendant, it must be conceded, was strong, in favor of its contention relative to the contract, and was corroborated by the previous court of dealing between the parties and the conduct of the plaintiffs during 1892 in making their orders for oil. It appeared in evidence that oil was shipped from time to time to the plaintiffs during the year, as ordered by them, and paid for, to the number of 9,490 barrels, or 510 barrels less than the 10,000 provided for by the contract. Also, that in the fall of 1892 the price of oil advanced, so that the jury found the market value on January 1, 1893, to be 58 cents per gallon. The jury found a verdict for the plaintiffs for the difference in value of this 510 barrels of 50 gallons each, between 32 1/2 cents and 58 cents per gallon. The principal issue of fact litigated on the trial was stated by the circuit court, in its charge to the jury, as follows: 'For the purposes of this litigation, the question of fact for you to pass upon is whether this contract was a contract for the absolute delivery of ten thousand barrels of oil at the price named until it was all delivered, as the plaintiff might desire and request, or whether it was a contract simply for the sale and delivery of so much oil as the plaintiffs might need in the year 1892, not to exceed ten thousand barrels. ' At the conclusion of the evidence, among other things, the defendant's coun...