Canton Cotton Mills v. Southwest Overall Co.

• Decision Date: 07 October 1925
• Docket Number: No. 6864.,6864.
• Parties: CANTON COTTON MILLS v. SOUTHWEST OVERALL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 807 (1925)

CANTON COTTON MILLS v. SOUTHWEST OVERALL CO.

No. 6864.

Circuit Court of Appeals, Eighth Circuit.

October 7, 1925.

Richard S. Righter, of Kansas City, Mo. (Thomas H. Reynolds, of Kansas City, Mo., and H. M. Stephens, of New York City, on the brief), for plaintiff in error.

Edmund H. McVey, of Kansas City, Mo. (Samuel R. Freet, of Kansas City, Mo., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.

SANBORN, Circuit Judge.

This is an action of the Canton Cotton Mills, a corporation, against the Southwest Overall Company, a corporation, for damages for the breach by the latter of its alleged contract to purchase "50 bales 2.20 Canton denims, equal weekly deliveries March, April, May, June," 1919, at 35 cents a yard, and the error in the trial assigned is that the court below, at the close of the evidence for the plaintiff, sustained a demurrer thereto and directed a judgment for the defendant, because in its opinion the evidence failed to prove the meeting of the minds of the parties, indispensable to a valid contract, upon (1) the times of delivery of the goods and (2) the times and terms of the payment therefor.

The Mills was a manufacturer of cotton denims at Canton, Ga. The Farish Company was a corporation, a broker, whose principal place of business was in New York City. It was in 1918 the exclusive agent of the Mills for the sale on commission of its entire production. It submitted the orders it obtained from prospective purchasers to the Mills and the latter accepted or declined them. The Overall Company was a wholesale merchant doing business in Kansas City, Mo. The evidence pertinent to the issue, contract or no contract, was in writing and consisted of letters and telegrams, the relevant parts of which are these:

On December 19, 1918, the Farish Company telegraphed the Overall Company: "We offer subject mills acceptance Canton denims equal weekly deliveries March April May June two twenty thirty-five cents. * * *"

The Overall Company answered on December 20, 1918: "Book us fifty bales two twenty Canton as per your telegram nineteenth delayed."

On December 21, 1918, the Farish Company replied, "We confirm fifty bales Canton two twenty per your wire," and on December 23, 1918, wrote, "In accordance with your telegram, we are entering your order for 50 bales Canton 2.20 denims, as per duplicate herewith inclosed. * * *"

The duplicate inclosed contained the terms which raise the first question in this case, the question whether or not there ever was the essential meeting of the minds of the parties upon the times of the delivery of the goods. It was dated December 23, 1918, entitled "Order for Southwest Overall Company," and contained these terms: "When ship equal weekly dely March to June, inclusive. Terms 2% — 70-day acceptance at mill door with freight allce. to at mill."

Then followed the description of the goods, the price and other matter not pertinent here and these words and figures: "16 bales April, 17 bales May, 17 bales June (as per Mills' letter 12-23-18) (subject to Mills' acceptance)."

On January 6, 1919, the Farish Company wrote the Overall Company: "We are pleased to inform you of the acceptance by Canton Cotton Mills of your valued order of 23rd ultimo for the following: 50 bales Canton 2.20, W. B. indigo denim @ .35. * * * Shipments 16 bales April — 17 bales May — 17 bales June — equal weekly delivery March to June, inclusive."

On the same day the Farish Company wrote another letter to the defendant, which raised the second question, whether or not the minds of the parties ever met upon the times or terms of payment. That letter was dated January 6, 1919, was addressed to the Overall Company and contained these words:

"Gentlemen: Your order of the 23d ult. for 50 bales Canton denims, approximate value $19,000, has come to the writer for his attention. We are accepting this order with the understanding that it will be subject to a line of credit which will be hereafter assigned to your firm. This line of credit, of course, will be determined largely by the showing made in your latest financial statement, which we presume will be as of the 1st inst., and, this being the case, we are writing to request that you favor us with a copy of this financial statement as soon as it is ready."

There was no farther correspondence between the Farish Company or the Mills and the Overall Company until January 28, 1919, when the latter wrote the former as follows:

"We are in receipt of your letter of recent date, in which you accept our order for 50 bales Canton denim conditionally. We also notice that, instead of commencing shipments in March as per your offer, you are now offering shipments commencing April 1st, extending to July 1st. This is not satisfactory to us, and since you have seen fit to accept the order conditionally and on different terms of delivery from your offer, we will cancel the same, and trust to good fortune in being able to buy as we need the denims."

There was other evidence in the case, but none competent substantially to affect the conclusion that must be deduced from that which has now been recited. For example, there was evidence that on December 27, 1918, the Mills wrote the Farish Company, its agent, that...