Bryan, Keefe & Co. v. Howell

• Decision Date: 20 July 1926
• Citation: 109 So. 593,92 Fla. 295
• Parties: BRYAN, KEEFE & CO. v. HOWELL et al.
• Court: Florida Supreme Court

109 So. 593

92 Fla. 295

BRYAN, KEEFE & CO. v. HOWELL et al.

Florida Supreme Court, Division A.

July 20, 1926

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by Bryan, Keefe & Co. against Frederick H. Howell and others copartners under the name of B. H. Howell Son & Co. Judgment for defendants, and plaintiff brings error.

Affirmed.

(Sullabus by the Court.)

COUNSEL

Wm. M Taliaferro and James F. Glen, both of Tampa, for plaintiff in error.

T. M Shackleford, Jr., and Shackleford & Schackleford, all of Tampa, for defendants in error.

The declaration in this case reads as follows:

'Now comes the plaintiff in the above-stated cause, by leave of the court first had and obtained, and files this its amended declaration.

'The plaintiff, Bryan, Keefe & Co., a corporation, by its attorneys, sues the defendants, Frederick H. Howell, James H Post, and Thomas A. Howell, copartners under the firm name of B. H. Howell Son & Co., for that in the latter part of 1920 and early part of 1921 a controversy existed between the plaintiff and the defendants as to the liability of the plaintiff on account of 500 bags of sugar delivered by the defendants to the plaintiff at Tampa in the month of August, 1920, and, to wit, of February 8, 1921, the plaintiff and defendants entered into a contract for the settlement of the said controversy, evidenced by the terms of a letter of that date from the plaintiff to the defendants, and certain correspondence inclosed therewith, including a check of the plaintiff to the defendants for the sum of $10,489.02, which accompanied the said letter, the said correspondence being as follows, to wit:

"February 8, 1921.

"Messrs. B. H. Howell Son & Co., 129 Front St., New York N. Y.

Gentlemen: We are just advised by Messrs. Harmon & Hulsey that you have not received our check sent you on January 31st.

"Upon looking through our files, we find our letter was addressed to you at Philadelphia and was evidently mailed to the same point.

"We are inclosing you herewith a duplicate of the check, also duplicate copies of all papers sent you at that tiem. We know this sounds like a put-up job in sending this letter to Philadelphia, but somehow or other we had Philadelphia on our minds, which is the reason the the check was sent to that point.

_________________________________ "Yours very truly,

_________________________________ "Snow-Bryan Company.

_________________________________ "EJK/J

"Incls.

"January 31, 1921.

"Messrs. B. H. Howell Sons & Co., Philadelphia, Pa.

Gentlemen: As per exchange of wires between Messrs. Harmon & Hulsey and T. S. Southgate & Co., we inclose herewith our check for $10,489.02 in settlement of your invoice of August 23d. This amount is arrived at by deducting the cash discount and a further allowance of $500--authorized by T. S. Southgate & Co. on account of the expense you would be put to for attorney fees if this claim was placed in the hands of your lawyers for collection.

"In making this settlement we call your attention to copy of inclosed letter dated December 11, 1920, addressed to your brokers, Messrs. Harmon & Hulsey. We also call your attention to inclosed copy of letter addressed by Messrs. T. S. Southgate & Co. to the C. B. Witt Co., of Tampa, dated November 18, 1920.

"This check is tendered you with the reservations as outlined in our letter to Messrs. Harmon & Hulsey of December 11, 1920, as per copy inclosed.

"We are inclined to think that this permanently closes the entire matter, but see no reason why you should be unwilling to accept the settlement as tendered, and hope under the circumstances you will do so.

_________________________________ "Yours very truly,

_________________________________ "Snow-Bryan Company.

"December 11, 1920.

"Messrs. Harmon & Hulsey, 601 Ashley Street, Tampa, Fla.

Re B. H. Howell, Son & Co.'s invoice Aug. 23, 1920, 500 sacks sugar $22,393 per 100 lbs., $11,213.29.

Gentlemen: Considerable correspondence has passed in this matter as well as numerous interviews with you. In order to place the matter in definite form, we make the following proposition:

"On receipt of assurances from B. H. Howell Son & Co. or you or others acting as their agents, that in the event they make settlement with any concern in Tampa holding sugars that are in dispute, on any other basis than payment of full invoice price, they will extend to us exactly the same concessions on the above invoice.

"Further, we understand the C. B. Witt Company have been relieved of certain sugars; any settlement made with this concern in this case to be extended to us. Further, that unless action is taken in the C. B. Witt Company case within a reasonable time, it is to be considered by all concerned that a settlement has been made with this concern, and that an adjustment will be then made with us on the same basis.

"On receipt of this assurance we will give you our check for $10,989.02, certified, if you wish, with the further understanding that Messrs. B. H. Howell Son & Co. will refund us such amount as may be necessary, if any, in the light of the above understanding.

"We have always had your assurance that we would receive exactly the same treatment as was accorded others, and while we are entirely satisfied to make settlement with no other assurance, still we do not think it fair to you for us to ask you to assume this entire responsibility, and we are therefore writing this letter to give you an opportunity of securing the same expression from your principals.

"We are ready to make settlement immediately on receipt of your reply, and if you do not care to take the matter up with the refiners and will assume this responsibility yourself it will be entirely satisfactory to us, but, as this is a matter of some small importance, we think best to call your particular attention to the fact that this is our understanding of this matter.

_________________________________ "Yours very truly,

_________________________________ "Snow-Bryan Company.

"November 18, 1920.

"C. B. Witt & Co., Tampa, Fla.

Gentlemen: We have had many exchanges back and forth with B. H. Howell Son & Co. with respect to your proposition contained in your recent letter, viz., to take 271 sacks sugar at 22 cents and return to our stock 379 bags, on which the refinery is to suffer to loss. We have persuaded Howell to allow us to accept this proposition without prejudice and without its having the slightest bearing upon what is finally decided upon with respect to the balance of the various contracts that are unsettled in Tampa.

"In the interest, therefore, of clarification and of making a start toward cleaning this matter up, we are authorizing billing to you as above stated, and will provide for the retention of the 379 bags and its disposition in some other form, as above stated.

_________________________________ "Very truly yours,

_________________________________ "T. S. Southgate & Co.

"P. S.--The bookkeeping way of handling the above in our judgment would be as follows: Howell billed you, under date of August 23, 650 bags; we will now ask them to issue you credit memorandum for 379 bags, which you can attach to your invoice for the 650 bags and remit for the balance--271 bags. Please do this, therefore, at once.'

'That Harmon and Hulsey and T. S. Southgate & Co. mentioned in the said correspondence were and are agents and representatives of the defendants; that the defendants received and cashed the said check for $10,489.02, and never returned of offered to return the same, and thereby assented to the terms of the plaintiff as set forth in the said correspondence; that the defendants also had a controversy with C.

B. Witt Company, a corporation, also doing business in the city of Tampa, as to its liability on account of certain sugar delivered by the defendants to the said C. B. Witt Company at Tampa in the month of August, 1920; that the price of both sugars at the time of deliveries to the plaintiff and C. B. Witt Company, respectively, was 22 cents per pound; that both the plaintiff and C. B. Witt Company had objected to receiving and paying for the said sugar at the said price, and there was in existence at the time of the respective deliveries thereof by the defendants to the plaintiff and C. B. Witt Company no contract requiring or binding either to accept or pay for the said sugar; that the defendants did make a settlement with the C. B. Witt Company whereby they accepted the return from the said C. B. Witt Company of 379 bags of the said sugar, which at the time of said settlement had declined in price to 9 cents per pound and has since remained at less than that price, and relieved the said C. B. Witt Company of any obligation on account of the said sugar so returned, whereby the plaintiff is entitled to receive of the defendants 13 cents per pound on 500 bags of sugar, containing upwards of 50,000 pounds for which it paid the defendants at the rate of 22 cents per pound, included in the check for $10,489.02, sent with the plaintiff's letter of January 31st to the defendants and received and cashed by the defendants, less the sum of $500 and the cash discount, amounting to 2 per cent. mentioned in the said letter; that the name of the plaintiff has been changed since the correspondence to Bryan, Keefe & Co.

'Wherefore plaintiff sues the defendant and claims $10,000 damages.'

To this declaration the defendant interposed a demurrer testing its sufficiency in matters of substance on various grounds.

OPINION

BROWN, C.J. (after stating the facts as above).

In their briefs, counsel for defendants in error criticised the declaration for pleading evidentiary facts instead of ultimate facts, and for...