American Mills Co. v. Hoffman, 124.

• Decision Date: 06 July 1921
• Docket Number: 124.
• Citation: 275 F. 285
• Parties: AMERICAN MILLS CO. v. HOFFMAN et al.
• Court: U.S. Court of Appeals — Second Circuit

275 F. 285

AMERICAN MILLS CO. v. HOFFMAN et al.

No. 124.

United States Court of Appeals, Second Circuit.

July 6, 1921

This cause comes here on writ of error to the United States District Court for the Southern District of New York. The defendant in error, plaintiff below, is hereinafter called plaintiff. The plaintiff in error, defendant below, is hereinafter called defendant.

The plaintiff was and is a copartnership engaged in business in the city of New York. The defendant is a corporation organized under the laws of the state of Georgia, and maintains its offices in Atlanta, in that state. It is engaged in the purchase and sale of twines and cordage. The plaintiff was represented in Atlanta by Francis B. Florence a merchandise broker, who received from the plaintiff the following letter dated October 9, 1918:

'Dear Sir: Answering your favor of the 5th instant with order inclosed for 25,000 lbs. of Lion Mills Thrush brand paper twine #1200, Mr. Florence, the goods are put upon spools as per the one sent you. Therefore, if you will send us the order for 25,000 lbs. at 30c per lb. f.o.b. New York City 2% 10 days net 30, subject to no freight allowance or carrying charges of any kind, price 30c per lb. for #1200 Thrush brand paper twine put up on spools weighing about 5 lbs. each, to be shipped as fast as we can produce it at our mill which would be anywhere from two to eight weeks to complete the order, barring any unforeseen conditions that might arise, we will enter same. Let order come forward at once please. The goods are usually put up in cases.'

Florence then called on defendant and received from them an order for 25,000 pounds of brown paper twine at 30 cents per pound. This order he sent to the plaintiff at New York, and in response received the following reply, dated October 19, 1918:

'(Letter head of Hoffman-Corr Mfg. Co.)

The broker took this letter to the defendant, who under date of October 22, 1918, wrote the plaintiff as follows:

'Mr. Florence has shown us your letter addressed to him under date of October 19th, having reference to our order for 25,000 pounds of brown paper twine.

'However, he advised that the sample which you advised was being inclosed was not inclosed.

'In consequence of which we attach hereto a small sample of the twine submitted by your Mr. Florence representing the #1200 Thrush twine, or brown paper twine, and against which we placed our order.

'This, you will notice, is a very small twine made of paper of a width of probably 9/16 to 3/8 inch in a basis weight of about 20 to 25 pounds.

'If for any reason your understanding varies from this do not fail to advise us immediately.

'We also note the exceptance you take in several of the terms mentioned in our order, that is, order being subject to cancellation for cause beyond the buyer's control, etc., and would say that it is agreeable to us for you to eliminate these conditions on the order in question.

'Do not fail to advise us relative to the inclosed sample immediately and oblige.'

The plaintiff replied on October 25, 1918, as follows:

'We are in receipt of your favor of the 22d instant relative to your order for 25,000 lbs. of brown paper twine. We note that #1200 is what is desired. We shall, therefore, proceed with the order, with the understanding that, as per your agreement in said letter of the 22d, clauses we mentioned in our previous letter shall be eliminated. We are going to ship #1200 Thrush brand twine, eliminating the clauses in question, and thank you for your order.'

On October 28, 1918, plaintiff wrote defendant that New York City would be the point of shipment, and asked that shipping instructions be immediately forwarded. On November 1, 1918, the defendant instructed the plaintiff to deliver the twine to the Harris Warehouse in New York City.

On December 14, 1918, plaintiff made a delivery of six cases to the above warehouse, and forwarded to defendant at Atlanta copies of invoices purporting to cover the contents of the same. These invoices having reached defendant, and on January 2, 1919, the defendant wrote to the plaintiff as follows:

'We note your invoice dated December 14th, covering six cases of Thrush twine delivered to the Harris Warehouse.

'We presume that this is against our order for a quantity of these goods, which was to be delivered immediately.

'A reference to our records shows that practically all orders which we had against this have been canceled, due to our failure to deliver, so of course we would have no alternative except to effect cancellation with you.

'It will be satisfactory for us to accept delivery on these six cases, as we do not doubt but what we can get rid of same, but we can accept them only with the understanding, of course, that the balance will be canceled.

'Kindly advise us immediately with regard to same to the end that we may know whether we can take in the six cases or not.

'Awaiting your prompt advice, we are.'

At the same time defendant wrote to the Harris Warehouse, instructing the warehouse not to take any of the goods in for defendant's account.

On January 4, 1919, plaintiff wrote defendant saying:

'We have your favor of the 12th (2d) instant with regard to our invoice of Dec. 14, for Thrush brand twine. We note your letter with great surprise. We have already shipped from mill on that 25,000-lb. contract (please refer to your letter of Oct. 11th, contract #F-188), on the 14th ult., 2,677 lbs., and there is in transit from the mill about 5,000 lbs. more, and we cannot, under any circumstances, accept cancellation on the order.'

On January 28, 1919, defendant wrote plaintiff as follows:

'We return you herewith invoices for 'Thrush' twine, and desire to state that this order has been canceled.

'If you recall, when we sent you settlement the last shipment, it was sent with the distinct understanding that it would cancel all contracts of every kind and nature, and we hold your receipt to this effect.

'We cannot handle any of these goods, and we will thank you to have them removed, and if they are stored at the Harris Warehouse they are stored there for your account.

'As stated, please investigate this matter, and oblige.'

Various letters thereafter passed back and forth between the parties, and in the meantime the plaintiffs continued to ship cases of twine to the warehouse until February 20, 1919, when the final shipment was made. And on March 10, 1919, defendant sent a telegram to plaintiff rejecting all the merchandise. The plaintiff shortly thereafter brought this action, and levied an attachment upon the twine at the warehouse.

The complaint alleged the making of the contract, and that the plaintiffs had duly performed all the conditions thereof on their part. The answer admitted the making of the contract, but denied that it was correctly set forth. It also denied the performance alleged by plaintiff, and denied indebtedness to plaintiff. In addition the defendant set up as an affirmative defense a breach of the agreement in that the goods did not conform with the description contained in the letter of October 22d, heretofore recited. At the close of the entire case and before it was sent to the jury defendant moved to dismiss on the following grounds:

First. That shipments were not made within the time agreed upon.

Second. That the twine was not put up on five pound fibre spools.

Third. That 25,000 pounds of twine had not been delivered or tendered.

Fourth. That there was no proof of what quantity had been delivered or tendered.

Fifth. That deliveries were made in installments which was contrary to section 126 of the Personal Property Law of the state of New York (Consol. Laws, c. 41).

Sixth. That, as required by section 144 of the Personal Property Law of the state of New York, there was no proof that the goods could not, at the times of rejection, have been readily resold for a reasonable price, and no proof that the plaintiffs had sent the notice required by that statute.

After defendant had made these motions, the court requested counsel for the plaintiffs to discuss the various propositions raised thereby. As a result of this discussion the court ruled that the plaintiffs had failed to satisfy the statutes relied on by the defendant in its motions to dismiss, holding that the plaintiffs had not shown delivery after the first shipment of six cases on December 14, 1918, and had not otherwise proven a compliance with the statute.

Plaintiffs' counsel thereupon moved to amend the complaint, to change the cause of action from goods sold and delivered to breach of contract for failure on defendant's part to accept the goods after the shipment of December 14th, basing his amendment on section 144, subd. 3, of the Personal Property Law of New York. He then asked leave to have the record reopened and for permission to introduce new proof to support the amendment. These motions were granted over the objection and exception of defendant, and defendant was directed to proceed with its defense to the new complaint, over its plea of surprise and its request for leave to withdraw a juror.

Further testimony was taken, and at the close of the case defendant again renewed its motions to dismiss. These were denied, and the case was submitted to the jury, a verdict was returned for 21,718 1/2 pounds at 30 cents per pound, making a total of $6,515.55, which with judgment was entered on April 3, 1920, for $6,930.25, together with $76.12 costs as taxed, making in all the sum of $7,006.37.

Henry Uttal, of New York City (Ely Neumann, of New York City, of counsel), for plaintiff in error.

John B. Doyle, of New York City, for defendants in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

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