Cameron Mill & Elevator Co. v. Chas. F. Orthwein's Sons

• Decision Date: 10 February 1903
• Docket Number: 1,162.
• Citation: Cameron Mill & Elevator Co. v. Chas. F. Orthwein's Sons, 120 F. 463 (5th Cir. 1903)
• Parties: CAMERON MILL & ELEVATOR CO. v. CHAS. F. ORTHWEIN'S SONS.
• Court: U.S. Court of Appeals — Fifth Circuit

120 F. 463

CAMERON MILL & ELEVATOR CO. v. CHAS. F. ORTHWEIN'S SONS.

No. 1,162.

United States Court of Appeals, Fifth Circuit.

February 10, 1903

S. B Cantey and R. W. Flournoy, for plaintiff in error.

W. P McLean and F. Charles Hume, for defendants in error.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

BOARMAN District Judge.

Orthwein's Sons, citizens of Missouri, dealers in and exporters of grain--their immediate place of business being at Ft. Worth Tex.-- were the plaintiffs below; and the Cameron Mill Company, receivers, shippers, and dealers in grain in the same place, called in the briefs the 'Mill Company,' were the defendants below. It will be sufficient for our present purposes to state the cause of action to be as follows: Orthwein's Sons allege that the mill company on August 19, 1900, sold, under two different contracts of sale (5,000 under each contract), 10,000 bushels of wheat of a certain quality, under conditions and mutual understandings which show an executory contract-- a contract which did not become executed or vest title in the thing sold in Orthwein's Sons unless and until it (the wheat) was delivered to them after inspection grades and weights, into the elevator at Galveston; that the mill company, because of its default and failure to perform its part of the contract, became ultimately indebted to them in the sum of $3,715.61. The mill company rest their defense on the ground that the said contract of sale vested title to the wheat in Orthwein's Sons; that the delivery and shipment from Ft. Worth of the wheat were made by the mill company as bailees of the purchaser thereof, according to mutual understandings and obligations of the sellers and buyers, and if said wheat, after its delivery at Ft. Worth, was in fact damaged by the Galveston storm, or otherwise, the title thereto having passed out of the sellers to the buyers, the mill company is not liable for such damages. Orthwein's Sons, contending that the delivery of said wheat was to be made into the elevators at Galveston, sought to show and recover on an executory contract which, in its essential elements, had been defaulted on by the mill company. In these contentions inhere the issuable matters of fact and law material in this case, the trial of which resulted, on an affirmative charge of the Circuit Court, in a judgment for the defendant in error for $3,771.04.

The record shows 10 assignments of error on behalf of the plaintiffs in error. The first assignment of error charged against the trial court is because of its refusal to admit a part of McLellan's evidence relating to his understandings of the meaning of certain words and phrases relating to place of delivery appearing in the letters now in evidence, which letters plaintiffs in error contend are ambiguous and incomplete in their meaning, and do not show a mutual understanding that sellers were to deliver wheat into the elevator at Galveston. The several other assignments, relating, as they do, to the refusal of special instructions, challenge, substantially, the Circuit Court's affirmance of the contention of the defendants in error to the effect that, under the terms of the contract of sale, the title remained in the mill company, and the said company bound itself in the contract of sale to deliver the wheat to Orthwein's Sons 'in the elevator at Galveston,' and may be taken up later, and disposed of in considering the charge of the Circuit Court. The Circuit Court's charge is as follows:

' * * * It appearing to the court that the law is for plaintiff, the court so announced, and instructed the jury to find for plaintiffs the amount of the difference between the sums paid by plaintiffs to defendant for the wheat in controversy, and the value of said wheat at the time same was delivered to plaintiffs in the elevators at Galveston, together with the expenditures made by plaintiffs for handling and preserving the wheat before it went into said elevators. * * * '

Considering the first assignment of error, it appears that plaintiffs in error, refusing to be held to an acquiescence in the interpretation which the defendants in error sought to put upon the contract of sale, offered to show by McLellan how he himself (he having negotiated the sale over the phone with Orthwein's Sons' agent, Mountcastle) understood, on his reading of buyers' letters, the sellers' obligation as to the matter of delivery. He was asked to read Orthwein's Sons' letter, and say what he understood-- that is, what is the meaning of the statement, 'We confirm purchase from you today' of so many bushels of wheat 'at 70 1/2 delivered Galveston, Tex.' We recite here two of the confirmatory letters; the other two, relating to the other 5,000-bushels deal, being, except as to price, substantially similar:

'Fort Worth, Texas, Aug. 29, 1900.

'Mess. Cameron Mill & Elev. Co., Fort Worth, Texas-- Dear Sir: We confirm purchase form you to-day of . . . cars, 5,000 bushels, No. 2 red wheat, new crop, at 70 1/2 delivered Galveston, Tex., . . . f.o.b. shipment within 10 days. Delivery at . . . by Galveston, Tex., weight and grades. Ship to Galveston, care Texas Star Mills Elevator, and don't fail to note on B. L. 'For Export.' Make draft on us B. L. attached, at Fort Worth, Texas, leaving fair margin. Exchange to be paid by shipper. All cars must be loaded to capacity.

'In reference to this purchase please use Contract No. 897.

'Yours truly, Chas. F. Orthwein's Sons per Butts.

'No. 3 wheat, 59 lbs. 1c off, and 1c additional for each pound below 57.'

'Cameron Mill & Elevator Co. High Grade Flour and Meal.

'Fort Worth, Texas, Aug. 29th, 1900.

'C. F. Orthwein's Sons. City-- Dear Sirs: We beg to confirm our sale to you over phone to-day of 5,000 bushels of No. 2 red wheat at 69 1/2 cents per bushel and 5,000 bushels at 70 1/2 cents per bushel, delivered Galveston.

'Yours truly, Cameron Mill & Elevator Co.,

'Per McLellan.'

This record shows a case which resolves itself, on writ of error, into the question as to whether any issuable matters of fact are disclosed therein which should have been submitted to the jury. Several issues of law are presented by counsel on either side, illustrating their contentions as to the first assignment of plaintiff in error. Under our view of the case, it seems necessary to consider two issues of law: First. The legal question as to whether or not the language and phrases of the letters relied upon by the buyers to show an aggregatio mentium of the parties on the place for the delivery of the wheat, when read between their four corners, are ambiguous and incomplete. Second. Should the letters, in considering McLellan's rejected testimony, be treated as written instruments intended by their authors, respectively, not to reduce to writing all their understanding as to the essential elements of the verbal contract of sale made over the phone, but to add confirmation thereof, with supplementary instructions, in which both parties had already primarily concurred as to matters which may necessarily enter into in whom the title vested when the damaged wheat was found after the storm at Galveston.

It was competent for the parties to make a verbal contract of sale of either an executory or an executed character. The agents of the parties, as witnesses on either side, agree in saying a contract of sale was made and completed on parol negotiations and understandings had over the phone. Conceding that the sale was made verbally, an agreement as to the thing sold, the price, and consent, presumably, was understood by the parties, and this sale could have been enforced at the instance of either in the absence of these letters. In that case the matter of delivery would have been supplied by a presumption of law. Presumably, the two letters were written by the authors thereof, respectively, in their offices at Ft Worth. Nothing in the evidence appears to warrant us in saying which of the two letters was first written, or first reached the addressee. Neither of the letters propounds a proposition to buy or sell wheat, nor were the authors thereof discussing a new or another contract of sale. It seems that both parties, being content to stand on the parol sale, adopted such commercial methods of confirming the sale as may be customary with such dealers. Plaguing difficulties like those presented in these skelton letters are often imposed on trial courts, when traders, trusting their ventures to the vagaries of such hastily formed commercial instruments, find it desirable, after the unforeseen happens, and losses to either side follow, to invoke the courts to determine for them, from enigmatical contracts, made up of such letters, where or in whom was the title and risk when the loss was incurred. We are not impressed by the vague language of these letters, nor by the want of words which seem necessary to clothe the skeleton, or fill the blanks with sentient thought, with the presumption...