American Steel Hoop Co. v. Searles

• Decision Date: 11 May 1908
• Docket Number: 12,889
• Citation: 93 Miss. 1,46 So. 411
• Court: Mississippi Supreme Court
• Parties: AMERICAN STEEL HOOP COMPANY v. CHARLES J. SEARLES ET AL

46 So. 411

93 Miss. 1

AMERICAN STEEL HOOP COMPANY v. CHARLES J. SEARLES ET AL

No. 12,889

Supreme Court of Mississippi

May 11, 1908

FROM the chancery court of Warren county, HON. J. S. HICKS Chancellor.

Searles and another, appellees, partners trading under the firm name Searles Brothers, were complainants in the court below; the American Steel Hoop Company, appellant, was defendant there. From a decree in complainants' favor the defendant appealed to the supreme court.

The suit was an attachment in chancery, brought by appellees against appellant, a non-resident of the state, for the recovery of damages for breach of a written contract. The bill alleged that Searles Bros. are wholesale brokers in the city of Vicksburg; that the American Steel Hoop Company is a New Jersey corporation, domiciled at Pittsburg, Pa., and that on March 4, 1901, the American Steel Hoop Company agreed to sell to Searles Bros. five thousand bundles of cotton ties to be delivered f. o. b. at the mills in June of that year at ninety-eight and one-half cents per bundle; that on March 5, 1901, the defendant company agreed to sell to complainants, Searles Bros., an additional ten thousand bundles of cotton ties at one hundered and one-half cents per bundle, to be delivered f. o. b. at the mills in June, 1901. Each of these contracts contained the following stipulations "This contract is not subject to cancellation," and "The seller shall not be held responsible for delay in delivery caused by strikes, differences with workmen accidents at the mills, and other contingencies beyond its control." The bill further alleged that defendant failed to make any of the deliveries on these contracts, except three thousand bundles, amounting to $ 2,990, which amount complainants paid on July 24, 1901, and that, although defendant agreed to deliver standard ties, yet the three thousand bundles were short in weight, making a difference of $ 64.10 in price, and that by reason of the failure to deliver the remaining twelve thousand bundles of ties the complainants sustained a loss of twenty-five cents per bundle, or a total of $ 3,000, and that therefore their total damage amounted to $ 3,064.10. The bill charged the nonresidence of the defendant, and made the Vicksburg Bank a party thereto, and prayed an attachment of the stun of $ 2,990, belonging to the defendant company in the hands of the bank. The bill further alleged that at the request of complainants the defendant agreed to hold the ties for July delivery, instead of making the shipment in June as per contract, and set out the following correspondence in support thereof:

"Vicksburg, Miss., June 6, 1901. V. A. Moore & Co., Agts. Am. Steel Hoop Co., Atlanta, Ga.--Gentlemen: Referring to the two contracts which we have from you on Arrow ties, we desire that these ties be held for July shipment. The cotton season is very late in this section, and we have been unable to induce any of our customers to take any ties earlier than July, and many of them have insisted upon putting off their contracts until August. We ask that you will make the change in the contracts, and as soon as we can induce our customers to take the ties we will give you shipping instructions on them," etc. "Yours very truly, Searles Brothers, C. J. S."

To this letter appellant replied from Atlanta as follows:

"June 12, 1901. Messrs. Searles Bros., Vickburg, Miss.--Gentlemen: Yours of the 6th inst. has been returned to us by our New York office, with the advice that they cannot change the contract which they have with you, but are willing to give you the option of carrying the ties until July, provided you are willing to pay the additional charges for the deliveries thus delayed. This, you understand, will be one-half cent per bundle for each month or part of month," etc. "Yours very truly, American Steel Hoop Company, D. S. A."

The bill further alleged that complainants accepted the option tendered them in the letter from defendant of date June 12, 1901, but that the defendant failed to deliver the ties during the month of July, whereby they were damaged, etc. The defendant's answer denied the allegations of the bill generally, and relied for defense upon the fact that there was a strike which prevented the manufacture of the ties agreed to be delivered. It is shown, however, that the strike did not occur until some time in July, and that at the time it did occur the defendant had on hand a large stock of ties, which it was offering for sale at an advanced price during the month of July after the commencement of the strike.

Affirmed.

Dabney & Dabney, for appellant.

First: Appellees failed to sustain the burden imposed on them of showing that appellant could have delivered the ties.

Second: Appellant has shown conclusively that it could not have delivered the ties.

Third: Appellees were not entitled to the decree in any event for $ 64.10.

There is no evidence to support the contention that the appellant could have delivered the ties except some inferences drawn from the testimony of Bope and Skinner, in which they speak of appellant's prices for ties during July and August. The inference that the appellant had ties in Memphis which could have been used to fill the order is not...