Brooke v. Laurens Milling Co

• Citation: 78 s. c. 200,58 S.E. 806
• Parties: BROOKE. v. LAURENS MILLING CO.
• Decision Date: 18 September 1907
• Court: South Carolina Supreme Court

58 S.E. 806

(78 s. c. 200)

BROOKE.

v.LAURENS MILLING CO.

Supreme Court of South Carolina.

Sept. 18, 1907.

1. Sales—Quality—Inspection—Decision of Inspector.

Where a contract for the sale of No. 2 white corn provided that a certain public elevator grade should be accepted as final, the buyer was absolutely bound to accept corn tendered under the contract which had been inspected and passed as "standard No. 2 white" by the public elevator, when the grading was done in the exercise of an honest judgment.

2. Same—Acceptance—Inferiority of Quality—Waiver.

Where defendant accepted certain corn delivered under a contract of sale, he thereby waived the right to claim that the corn was inferior in quality; the inferiority, if any, being obvious, and not latent.

[Ed. Note.—'For cases in point, see Cent. Dig. vol. 43, Sales, § 460.]

3. Same—Breach of Contract—Resale.

Where a contract for the sale of corn provided that in case of the buyer's breach the seller might sell the corn for the buyer's account, the seller, on the buyer's breach, though entitled to sell the corn without waiting for the time agreed on for delivery of all the installments under the contract to arrive, could not recover the difference between the contract price and the market price on the day or days appointed for performance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 924.]

4. Same—Prior Sale—Market Price. Where, on defendant's breach of a contract

to purchase certain corn from plaintiff, plaintiff immediately sold the corn before the time fixed for acceptance under the contract, neither the amount realized at such resale nor the market price on the day of the sale was material in an action by plaintiff for defendant's breach of contract.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 924.]

5. Same—Guaranty of Price.

Where a contract for the sale of corn provided that, in case of the buyer's breach, the seller should sell the corn for the buyer's account, such contract, if construed to authorize a sale on the buyer's breach before the delivery date, did not operate as an implied guaranty by the seller of the market price on the day of such resale.

Appeal from Common Pleas Circuit Court of Laurens County; R. O. Purdy, Judge.

Action by George W. Brooke against the Laurens Milling Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Dial & Todd and F. P. McGowan, for appellant.

Simpson, Cooper & Babb, for respondent

WOODS, J. The plaintiff and defendant in January, 1904, made a contract in writing, by which it was agreed plaintiff should sell and deliver to defendant, at specified times, "9, 600 bushels bulk No. 2 white corn, " and defendant should, pay for the corn in specific installments. The contract was in these words: "This witnesseth that George W. Brooke, of Atlanta, Ga., has this day sold to Laurens Milling Co., of Laurens, S. C, 9, 600 bushels bulk No. 2 white corn, at

—— per bushel delivered at Laurens, S.

C. Said corn to be stored with the Steel Elevator and Storage Co., of West Nashville, Tenn., and carrying charges of 1 cent per bushel per month, or fraction of a month, are to be paid by said Laurens Milling Co., in addition to the above price, beginning April 1st, 1904. Delivery is to be madewithin 15 days after receipt by said Brooke of order therefor by said Laurens Milling Co., provided, however, that if failure to deliver within the usual time is occasioned by failure of the railroads to furnish cars therefor, or transport same, shall not be chargeable to said Brooke. Title to said corn shall pass on delivery hereunder. West Nashville Public Elevator weights and grades to be accepted as final. Said Laurens Milling Co. has paid to said Brooke a margin of 10 cents per bushel on said corn by notes of $960.00, June 1st, 1904; July 1st, 1904, payable at

the ——of ——, which amount of said

notes is to be deducted from the last invoice when the grain is shipped, or to such amount as will balance the account, and it is agreed if said Laurens Milling Company does not order out said corn as per these terms of contract, said Brooke may at his option sell said grain for account of said Laurens Milling Co. Shipments to be made as per memorandum on back of this sheet." Indorsed on it was the following memorandum:

2, 400 bus. No. 2 white corn to be shipped March...68 3/4 1 car March 1st.

1 " " 15th................68 3/4 1 " " 20th. 2, 400 bus. No. 2 white corn to be shipped April...69 3/4 1 car April 1st.

1 " " 15th.................69 3/4 1 " " 20th.

2, 400 bus. No. 2 white corn to be shipped May____70 3/4 1 car May 1st.

1 " " 15th..................70 3/4 2, 400 bus. No. 2 white corn to be shipped June...71 3/4 1 car June 1st.

1 " " 15th..................71 3/4 1 " ' 20th.

The defendant accepted and paid for two car loads of the corn, but refused to accept two other car loads which reached Laurens, the designated place of delivery, on the ground that it was not up to grade; and notified the plaintiff not to ship the remainder. Thereupon the plaintiff sold the corn, and brought this action for the difference between the contract price and the price realized on the resale. The substance of the defense Is contained in this sentence of the answer: "That, instead of shipping the corn of the quality stipulated in the contract, the plaintiff fraudulently shipped corn to the defendant that was damaged, musty, and mildewed and very inferior in all respects to No. 2 white corn, and was unfit for use, and this defendant could not use the same in its business, and upon the arrival of this corn at Laurens the defendant declined to receive the same, and immediately so notified the

plaintiff on the ——day of ——, 1904,

and demanded of the plaintiff the return of the notes given by the defendant to the plaintiff under the said contract, which demand has never been complied with." Evidence was adduced tending to prove the rejected corn was heated and inferior to No. 2 grade when it reached Laurens, and there was also evidence of its liability to become heated and damaged in transportation from Nashville, the place of shipment.

The provision of the contract on which an important question made by the appeal hinges is this: "West Nashville public elevator weights and grades to be accepted as final." There is no ambiguity or obscurity in this language. The grade No. 2 white corn provided for in the contract is a grade of universal trade recognition. It seems perfectly clear the West Nashville public elevator was not empowered to make a new standard of corn grading. The general trade grading; was to be the standard, but the West Nashville public elevator was to inspect the corn tendered for the parties, and decide whether it was up to date trade standard of No. 2 white. The plaintiff produced certificates from M. L. Coggins, grain inspector at the West Nashville public elevator, that he had inspected each of the car loads of corn, and that all of them contained "corn grade No. 2 white"; and Coggins confirmed these certificates by his testimony as a witness. The circuit judge submitted in his charge as one of the issues decisive of the case, whether in the opinion of the jury, as formed from the evidence, the corn was or was not in fact of No. 2 grade when loaded at Nashville. This we think was error, because the parties themselves had agreed in the contract that the grading of the elevator company should be final. In such case the true rule as fixed by authority, from which we can find no dissent, is that the decision of the arbiter on whom the parties have agreed is conclusive when reached in the exercise of his honest judgment. This rule was applied to the decision of arbitrators appointed by the parties in Rounds v. Aiken Mfg. Co., 58 S. C. 290, 36 S. E. 714, and earlier cases in this state; to the decision of an engineer under a contract to dig a well in Omaha v. Hammond, 94 U. S. 98, 24 L. Ed. 70; to that of a meat inspector under contract to deliver meat of a certain grade in Nofsinger v. Ring, 71 Mo. 149, 36 Am. Rep. 456; to that of architects and engineers under contracts for the construction of buildings or railroads in Sweeney v. U. S., 109 U. S. 618, 3 Sup. Ct. 344, 290, 27 L. Ed. 1053; Chicago, etc., R. R. Co. v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; Kennedy v. Poor, 151 Pa. 472, 25 Atl. 119; McAlpine v. Trustees, 101 Wis. 468, 78 N. W. 173; Kilgore v. N. W. T. Baptist Ass'n, 89 Tex. 465, 35 S. W. 145; Seim v. Krause, 13 S. D. 530, 83 N. W. 583; East ifenn., etc., Ry. Co. v. Central L. & M. Mfg. Co., 95 Tenn. 538, 32 S. W. 635; Thompson v. Bradbury, 5 Idaho, 760, 51 Pac. 758; Hot Springs Co. v. Maher, 48 Ark. 522, 3 S. W. 639. The reason for holding the award of the arbiter selected by the parties final, when reached in the exercise of his honest judgment, seems to be at least as strong as the reason for giving such effect to the return of commissioners in partition. In stating the principle applicable to the returns of commissioners the court says in Aldrich v. Aid-rich, 75 S. C. 374, 55 S. E. 888: "Even if it should be conceded that a preponderance ofthe evidence outside the report of the commissioners on the lands given Mrs. Richardson and Mrs. Duncan was too high, it was proper to sustain the valuation made by the commissioners, unless the court was satisfied the valuation was so grossly incorrect and unequal as to warrant an inference that the commissioners acted from unfair and improper motive. It is a matter of common knowledge that men of experience may differ as to the value of lands. So long, therefore, as the valuation by commissioners may be accounted for on this ground, it should be sustained; and it is not sufficient to overthrow a valuation by commissioners merely to show that in the opinion of other honest and experienced men the true...