Brent v. Chas. H. Lilly Co.

• Decision Date: 22 October 1909
• Docket Number: 1,760.
• Citation: 174 F. 877
• Parties: BRENT v. CHAS. H. LILLY CO.
• Court: U.S. District Court — Western District of Washington

174 F. 877

BRENT v. CHAS. H. LILLY CO.

No. 1,760.

United States Circuit Court, W.D. Washington, Northern Division.

October 22, 1909

E. M Carr and Harold Preston, for plaintiff.

John H Allen, for defendant.

DONWORTH District Judge.

This action is brought to recover the purchase price of a car load of Kentucky blue grass seed sold by plaintiff to defendant. There is no dispute as to the quantity or quality of the seed. The controversy turns on the construction of the contract of sale, and the only substantial question between the parties is how many pounds constituted a bushel within the meaning of the contract, which fixed the price at $1.40 per bushel. It is admitted that the seed delivered weighed 30,240 pounds. Plaintiff computing a bushel as 14 pounds sues for the price of 2,160 bushels, amounting to $3,024 while defendant, computing a bushel at 21 pounds, contends that it is liable for only 1,440 bushels, amounting to $2,016. It does not appear that the seed was ever measured, and therefore the number of actually measured bushels contained in the shipment is unknown. Neither party claims that the number of bushels was to be determined, under the contract, by a measurement in fact.

At the close of all the evidence, the court peremptorily instructed the jury to find for the plaintiff for the full amount claimed. On this petition defendant assigns as grounds for a new trial (1) the instruction to find for plaintiff; and (2) the court's ruling excluding testimony offered by defendant to show the market price of that kind of seed at the time the contract was made. The first point involves a consideration of the entire case. The parties never had any oral negotiations, and the contract was entirely by correspondence. This began with the following communication (Plaintiff's Exhibit A):

'Paris, Ky., June 17, 1908.

'Mess. Chas. H. Lilly & Co., Seattle, Wash.-- Dear Sirs: We offer you, for wire acceptance and if unsold 325 bags of fancy cleaned true Kentucky blue grass seed at $1.40 per bu., f.o.b. cars here. August, Sept. or October shipment. Samples of the new crop will not be ready before the first of August, but we will guarantee to deliver only new crop and that it will test 21 pounds to the measured bushel.

'Hoping to be favored with your order, we are

'Yours truly,

Chas. S. Brent & Bro.'

The foregoing exhibit consists of a printed form with blanks filled by typewriting. The typewritten words are shown above in italics; the remainder, including the signature, being printed.

To this defendant answered by telegram (Plaintiff's Exhibit A 1/2), as follows:

'Seattle, Wn., June 22nd, Chas. S. Brent & Bro. Book order one minimum car Kentucky blue grass yours seventeenth

The Chas. H. Lilly.'

This telegram was acknowledged by plaintiff the next day by the following letter (Plaintiff's Exhibit S):

'Paris, Ky., June 23, 1908.

'The Chas. H. Lilly Co., Seattle, Wash.-- Gentlemen: Your telegram of the 22nd accepting our offer of one car load fancy cleaned Ky. blue grass seed, testing 21#, at $1.40 per bu. f.o.b. cars here came to hand late and we wired you promptly this a.m. acknowledging the order. We now confirm the trade and await your advices. Trust that you will let us know which month you prefer shipment, as the early shipments generally tax out capacity and we do not want to delay your shipment if you wish it to go early.

'Thanking you for the order and awaiting your further advices, we are

'Yours very truly,

Chas. S. Brent & Bro.'

On sending its telegram of June 22d, defendant immediately confirmed it by mailing to plaintiff one of its printed forms of purchase contract (Plaintiff's Exhibit B), on which were typewritten after the words 'ship when' the words 'Aug.-- Sept.-- Oct.-- 1908. Our option,' and below, in the body of the page, appears the following:

'One minimum car new crop fancy cleaned true Kentucky blue grass seed weighing 21 lbs. to the bushel $1.40 per bushel f.o.b. cars Paris, Ky. Per your quotation June 17th. Confirming our wire to you this date as follows: 'Book order one minimum car Kentucky blue grass yours seventeenth.' Please acknowledge.'

This is signed by defendant per Mr. Leckenby, the manager of its seed department. On receipt of this plaintiff wrote to defendant as follows (Plaintiff's Exhibit E):

'Paris, Ky., June 27, 1908.

'The Chas. H. Lilly Co., Seattle, Wash.-- Gentlemen: Yours of the 22nd (Your No. 7272) confirming purchase of blue grass seed from us duly to hand and seems to be correct. 325 bags fancy cleaned true Kentucky blue grass seed, testing 21# to the measured bushel, at $1.40 per bu. (14#) f.o.b. cars here.

'While the shipment is optional with you as to Aug., Sept., or October, yet we would like for you to express your preference now so that there will be no delay in making the shipment when you want it. You understand that we are generally very much rushed during these months and would not like to sell to others up to capacity for August and then learn that you wanted your car shipped that month.

'Awaiting your further favors,

'Yours very truly,

Chas. S. Brent & Bro.'

Five days later defendant answered the foregoing letter as follows (Plaintiff's Exhibit F):

'Seattle, 7-2-08.

'Chas. S. Brent & Bro., Paris, Kentucky-- Gentlemen: Answering your favor of the 27th, we wish to correct your understanding of our order. This called for minimum car of 15 tons and not for 325 bags.

'We would like to have shipment between August 15th and September 15th, providing new crop is harvested by that time, but notify us and send sample before shipping so that we will be ready to take care of the seed.

'Yours truly,

The Chas. H. Lilly Co.

'FL/H.

By Frank Leckenby, Vice Pres.' The further correspondence up to the time that the car load of seed was shipped relates to details not now material. On August 22d plaintiff loaded the seed on a Louisville & Nashville Railroad car at Paris, Ky., and mailed to defendant an invoice for 2,160 bushels at $1.40, amounting to $3,024, at the same time sending through bank a sight draft for that amount on the defendant at Seattle with the bill of lading. When this invoice reached the defendant, it immediately wrote to plaintiff, claiming that it should be charged with only 1,433 1/3 bushels (a clerical error meant for 1,440 bushels), and refusing to pay the draft. Further correspondence ensued. The draft was never paid, and it does not appear that the bill of lading ever came into possession of defendant. Defendant's evidence tends to show that, after the car reached Seattle, the seed was unloaded into defendant's warehouse and sold through some misunderstanding of subordinate employes without the knowledge or consent of their superiors.

Pl...