Cadick Milling Co. v. Valdosta Grocery Co.
| Decision Date | 17 February 1920 |
| Docket Number | No. 10083.,10083. |
| Citation | 72 Ind.App. 534,126 N.E. 240 |
| Parties | CADICK MILLING CO. v. VALDOSTA GROCERY CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Gibson County; Simon L. Vanderveer, Judge.
Action by the Valdosta Grocery Company against the Cadick Milling Company. Judgment for plaintiff, and defendant appeals. Affirmed.E. M. Swan and W. C. Mason, both of Rockport, and Harvey Harmon, of Princeton, for appellant.
George K. Denton and Walton M. Wheeler, both of Evansville, for appellee.
This is an action by appellee against appellant for damages on account of the breach of an alleged contract. The amended complaint consisted of three paragraphs, the first of which was dismissed by appellee before the jury retired. The second paragraph alleges that the parties entered into a certain contract by which appellee purchased of appellant 1,000 barrels of flour; that said contract consists of an order and a confirmation thereof, and is as follows (we copy only such portions as are material to a determination of the questions presented):
Grandview, Ind., Nov. 10, 1914.
The Cadick Milling Co.:
Ship to Valdosta Grocery Co., at Valdosta, Ga.
Date of Shipment Nov. and Dec.
Terms net cash arrival, draft B-L attached.
This sale is made subject to the terms and conditions printed in on the back hereof, which are agreed to and are not subject to change or countermand without the consent of both parties. This order is taken subject to the confirmation of the Cadick Milling Co., Grandview, Ind.
Valdosta Grocery Co.
Salesman: Valdosta Brok. Co.
Conditions governing sales of flour and feed, adopted by the Southeastern Millers' Association, November 12, 1907.
(1) Terms: Sight draft with bill of lading attached.
(2) Unless otherwise specified, purchases must be ordered out within 30 days from date of contract, with a maximum possible limit of 90 days from date of contract. If not so ordered out within 30 days, or within contract shipment period, flour is without notice from seller subject to carrying charges of 5¢ per barrel per month, or fraction thereof, and feed, 25¢ per ton per month or fraction thereof. Such carrying charges become due and payable at the beginning of each 30-day period after the first 30 days of free storage, the buyer hereby agreeing to pay the same at the beginning of each 30-day period. Failure to order flour out on demand of shipping instructions at expiration of the maximum 90-day period, or to pay accrued carrying charges on demand gives seller the right to cancel contract, or resell the goods for buyer's account.
(Other provisions follow which are not material to the questions presented for our determination.)
Grandview, Ind., Nov. 10, 1914.
To Valdosta Grocery Co., Valdosta, Ga.:
We have this day entered sale to you as follows:
Subject to the terms and conditions printed on the back hereof, which are agreed to.
Cadick Milling Co.
Salesman: Valdosta Brokerage Co.
Conditions governing sales of flour and feed adopted by the Southeastern Millers' Association, November 12, 1907. (Here follows same provisions as quoted under same head in the order set out above, and also other provisions contained in said order, not material to the questions presented for our determination.)
It is then alleged that appellant during the months of November and December, 1914, furnished appellee, under said contract, 225 barrels of flour, which was duly paid for on delivery; that appellee thereafter, on January 30, 1915, and again on February 6, 1915, ordered out an additional 125 barrels of the kind of flour specified in said contract, giving proper directions as to packages, but appellant refused to ship the same, and notified appellee that it would not furnish said flour, or any further flour under said contract, and that it considered said contract terminated; that appellant did not at any time make any demand for the payment of carrying charges or shipping instructions; that appellee had performed all the conditions of said contract on its part to be performed, and was ready and willing at all times to take and pay for all of the flour mentioned therein in accordance with the terms thereof; that by reason of appellant's refusal to furnish said flour it was compelled to purchase the remainder of the flour specified in said contract upon the market at a loss of $3,000, for which it demanded judgment.
The third paragraph of amended complaint is substantially the same as the second, except that it omits any reference to any right given it by the terms of the contract to order out flour under said contract after December, 1914, and avers that, by reason of a general custom, it had a right to order out said flour at any time within a period of 90 days after January 1, 1915.
Appellant answered the amended complaint by a general denial, and also by an affirmative paragraph in which it alleged, in substance, that said contract was uncertain and ambiguous regarding the time and necessity of ordering out said flour and the giving of specifications and shipping instructions with reference thereto; that, by reason of such fact, a general custom in that regard prevailed with reference to such contract, which custom appellee had failed to observe, and that appellant therefore had a right to, and did, consider and treat said contract as abandoned by appellee.
The cause was tried before a jury, which returned a verdict in favor of appellee. Appellant filed a motion for a new trial, which was overruled on appellee filing a remittitur of $378.44. Judgment was thereupon rendered in favor of appellee, from which this appeal is prosecuted upon an assignment of errors, which requires a consideration of the question hereinafter determined.
[1][2] One of appellant's assigned errors is based on the action of the court in overruling its motion for a new trial. In this motion appellant alleges, among other things, that the court erred in giving certain instructions on its own motion, in giving certain instructions at the request of appellee, and in refusing to give certain instructions tendered by it. The correctness of these rulings depends almost entirely on our determination of certain contentions advanced by appellant with reference to the alleged contract in suit. We will therefore first direct our attention to these contentions. The record discloses that the alleged orde130or flour and its confirmation were introduced in evidence, and were substantially as set out in the complaint. There was also substantial evidence introduced on the trial tending to sustain the allegations of the complaint with reference to the shipment of certain flour under the alleged contract, the subsequent refusal to furnish any more flour thereunder, and the declaration on the part of appellant that it considered the contract terminated. It is contended by appellant that the order and confirmation in question do not constitute a binding contract, as it does not appear that there was a meeting of the minds of the parties thereto. Appellant asserts in support of this contention that there is a material variance between the alleged order and confirmation in the following particulars: (1) The order contains the statement, “5 cents a bbl. carry charges after Dec.,” which is not in the confirmation; (2) the confirmation contains the following: and “Gold Dust Patent 5.85”-which are not in the order. We cannot concur with appellant's contention in this regard. True, as appellant asserts, the order contains on its face the statement, “5 cents a bbl. carry charges after Dec.,” which does not appear on the face of the confirmation, but such provision, in effect, is contained in both the order and confirmation following the signatures thereto, which we assume are among the terms and conditions printed on the back of each and to which express reference is made on the face thereof. This being true, the statement in question found on the face of the order was not at variance with the confirmation, but merely served to call appellant's attention to the interpretation placed by it on the provisions on the back of the order to which express reference was made. Moreover, it will be observed that the confirmation states, “We have this day entered sale to you,” from which it may be reasonably inferred that appellant accepted the interpretation of appellee as to the provision on the back of the order with reference to carrying charges, as indicated by the statement on the face thereof. Nor can it be rightfully said that the words and figures, and “Gold Dust Patent 5.85,” found in the confirmation, but not in the order, have the effect for which appellant contends. These words are a part of the printed form used in making the confirmation which accounts for their presence therein. However, they can have no controlling significance, since there are no amounts set opposite the same to indicate that any flour of the brand thus designated entered into such confirmation. The clear and unambiguous meaning of the confirmation in question show that...
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Brown v. Jones
... ... bound by it. (35 Cyc., p. 167; Cadick Milling Co. v ... Valdosta Grocery Co., 72 Ind.App. 534, 126 N.E. 240; ... ...
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Simon v. Clark, 84A01-9412-CV-405
...that it would have been more appropriate for Simon to directly question Corn about the invoice. See Cadick Milling Co. v. Valdosta Grocery Co. (1920), 72 Ind.App. 534, 126 N.E. 240; Matter of J.O. (1990), Ind.App., 556 N.E.2d 948, 950, trans. denied (offer to prove should have consisted of ......
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