American Cyanamid Co. v. Wilson & Toomer Fertilizer Co.

• Citation: 51 F.2d 665
• Decision Date: 21 July 1931
• Docket Number: No. 5919.,5919.
• Parties: AMERICAN CYANAMID CO. v. WILSON & TOOMER FERTILIZER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

51 F.2d 665 (1931)

AMERICAN CYANAMID CO. v. WILSON & TOOMER FERTILIZER CO.

No. 5919.

Circuit Court of Appeals, Fifth Circuit.

July 21, 1931.

John W. Davis, of New York City, Stafford Caldwell, of Jacksonville, Fla., and Charles Caldwell, of New York City, for appellant.

George C. Bedell, Robt. R. Milam and A. Y. Milam, all of Jacksonville, Fla., and E. T. McIlvaine, of Miami, Fla., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Wilson & Toomer Fertilizer Company, referred to hereafter as plaintiff, sued American Cyanamid Company, referred to as defendant, at law to recover overcharges on phosphate rock delivered in the several years 1919 to 1923, inclusive, under a long-time contract for its purchase which plaintiff had made with Amalgamated Phosphate Company in 1911 and modified in 1912. The suit was in four counts; the third being a common count for money had and received. The first, second, and fourth were special counts which set up the terms of the contract, and that the defendant had in 1916 acquired all the capital stock of the phosphate company, and leased its mines and equipment, and had thereupon adopted the contract with plaintiff's consent, or else had so conducted itself with reference thereto as to estop it from denying adoption, and to amount in law thereto, but had continued to use in the business the name of the phosphate company which it dominated only in order to conceal the adoption and enjoy the advantages of the contract without incurring its burdens in a special particular, to wit, a clause that provided that the plaintiff should each year have the benefit of any price lower than the contract price of $2.80 per ton which the seller might make in such year on sales followed by delivery to others. A verdict was directed for the plaintiff against the defendant for over $60,000, and appeal taken by the defendant.

The first question we face is the effect of the decision of this court upon a former appeal. 33 F.(2d) 812. There was a reversal by a divided court, with a general remand for further proceedings not inconsistent with the majority opinion. We have here, therefore, no question of enforcing a specific mandate. The one ruling discussed in the majority opinion was the direction by the court below of a verdict in favor of the defendant at the conclusion of the plaintiff's evidence. After a general consideration of the law and the evidence so far as it had gone, the majority decision was that upon the plaintiff's evidence "uncontradicted and unexplained" the directed verdict was wrong. The dissenting judge thought otherwise. It was also ruled that the statute of frauds was not a defense, because the plaintiff had fully performed its side of the contract in dispute. No other distinct rulings were made. The evidence for the defendant has now been offered, which puts a different face on several matters discussed in the former opinion and rebuts some others. The former opinion under such a mandate is not necessarily an adjudication of any questions save those in terms decided. Wolff Paving Co. v. Court of Industrial Relations, 267 U. S. 552, 45 S. Ct. 441, 69 L. Ed. 785; Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 24 S. Ct. 538, 48 L. Ed. 788. We think under the present evidence we are at liberty to re-examine the facts and the entire law applicable to them.

At the new trial pleas of limitation were offered by the defendant to each count, which were allowed to be filed, but were stricken on motion upon the grounds that each was offered as a bar to the count but did not answer the entire count and that neither plea was a good answer in whole or in part to the count to which it was addressed. The former ground was untenable. The counts all sought recovery for rebates due for 1919, 1920, 1921, 1922, and 1923. The suit was begun August 22, 1924. The plea to each count was that "all parts or portions thereof relating to alleged causes of action arising out of purported transactions between plaintiff and defendant before August 22nd, 1921, occurred, if at all, more than three years before the institution of this suit." On their face these pleas do not profess to answer the whole counts, and are not demurrable for this insufficiency. In such case at common law, where only one plea in bar could be filed, the plaintiff could not demur but took judgment as by nil dicit as to the portion of the count not answered, and replied to the plea as to the remainder. Steven on Pleading, 216. In Florida, where more than one plea in bar may be filed, a plea which answers only a divisible part of the count is permissible as to that part, although other pleas prevent a judgment as to the remainder of the count until they are disposed of. Hartford Fire Ins. Co. v. Hollis, 64 Fla. 89, 59 So. 785; Cosmopolitan Ins. Co. v. Putnal, 60 Fla. 41, 53 So. 444. Whether the lapse of three years does bar any part of the counts depends upon the causes of action declared on. The laws of Florida, Compiled General Laws of 1927, § 4663, provide a limitation of twenty years for "an action upon any contract, obligation, or liability founded upon an instrument of writing under seal," and five years if "founded upon an instrument of writing not under seal," and three years for an action for fraud, or an action "upon a contract, obligation or liability not founded upon an instrument of writing." The third count is for money had and received, and exhibits no contract, but only a bill of particulars "For overcharges on phosphate rock" at stated dates and for stated amounts. Claiming on its face no written contract for its foundation, the three-year limitation appears to be applicable to this count, and the plea applying to it should not have been stricken. Counts 1, 2, and 4 are also for overcharges or rebates on phosphate rock, but exhibit written contracts and plead the express promise therein that plaintiff should have the benefit of a lower price than that specified in the contract upon certain contingencies which are claimed to have happened. These counts are founded on these contracts. It is true the defendant did not sign the contracts, but it is claimed in count 1 that it "assumed" it, and thus intentionally made it its own contract, and in count 4 that defendant wrote plaintiff certain letters manifesting a purpose to adopt it; and in counts 2 and 4 that certain conduct of the defendant had this effect, whether so intended or not. The Florida statute does not require that the written contract be signed by the defendant. If the defendant in any of these ways became bound by the terms of the writing, whether under seal or not, the action is founded upon the writing within the meaning of the Florida statute, and is limited accordingly. Brownson v. Hannah, 93 Fla. 223, 111 So. 731, 51 A. L. R. 976. To a like effect in other states are Kytle v. Kytle, 128 Ga. 387, 57 S. E. 748; Atlanta, K. & N. R. R. Co. v. McKinney, 124 Ga. 929, 53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. Rep. 215; Gilles v. Miners' Bank (Tex. Civ. App.) 198 S. W. 170; Schmidt v. Louisville R. R. Co., 139 Ky. 81, 129 S. W. 332; Houston Saengerbund v. Dunn, 41 Tex. Civ. App. 376, 92 S. W. 429; Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765. The fourth count which was allowed as an amendment on September 4, 1926, though exhibiting along with the contract the two letters claimed to be written by defendant, did not thereby introduce a new cause of action so as to fix its allowance as a new date for measuring its limitation. The letters make no express reference to the contract, and contain no promise to rebate or reduce the price. They are not the foundation of the fourth count, but at most are acts or admissions, if authorized, which might tend, along with the other facts, to show an adoption of the contract by defendant. We reject the contention that any count is for a fraud or other tort. A few expressions might so indicate, but the gravamen of the counts is the promise of the contract, as was held in the first sentence of our former opinion. The three-year limitation has no application to counts 1, 2, and 4.

The motion to transfer the case to the equity docket was properly overruled. We think no cause of action set forth was necessarily equitable. With some exceptions of concurrent jurisdiction where the plaintiff may make his choice of forum, a case is equitable only when some remedy is sought which equity alone can give, or some right set up which equity alone will recognize. No relief is here prayed, save a money judgment. Count 3 is the legal action for money had and received. Count 1, while it alleges that the defendant "assumed" the plaintiff's contract with Amalgamated Phosphate Company, does not set up any promise from the defendant to the phosphate company to do so which the plaintiff is seeking to enforce, but rather that defendant with plaintiff's acquiescence and consent took over and adopted the contract, thereby effecting a novation, in consequence of which defendant came directly into legal privity with the plaintiff. This is also the theory of the second and fourth counts. The fourth count also exhibits a lease between defendant and the phosphate company, but the lease contains no promise from the defendant to the phosphate company to assume the contract, but rather a promise by the defendant to the phosphate company to furnish it with the means of performing the contract for itself. The theory of the second and fourth counts we understand to be that, if defendant did not purposely adopt the contract as its own, its conduct was such as to estop it to deny such adoption, and to amount in law thereto. It has been held in many jurisdictions that plaintiff would have to enter equity to obtain enforcement of a promise from defendant to the phosphate company to carry out the latter's contract. Keller v. Ashford, 133 U. S. 610, 10 S. Ct. 494, 33 L. Ed. 667; Willard v. Wood, 135 U. S. 309, 10...