Central Commercial Co. v. Jones-Dusenbury Co.

• Decision Date: 07 January 1918
• Docket Number: 2490.
• Citation: Central Commercial Co. v. Jones-Dusenbury Co., 251 F. 13 (7th Cir. 1918)
• Parties: CENTRAL COMMERCIAL CO. v. JONES-- DUSENBURY CO.
• Court: U.S. Court of Appeals — Seventh Circuit

251 F. 13

CENTRAL COMMERCIAL CO. v. JONES-- DUSENBURY CO.

No. 2490.

United States Court of Appeals, Seventh Circuit.

January 7, 1918

Frank Crozier, of Chicago, Ill., for plaintiff in error.

S. S Gregory and Albert S. Long, both of Chicago, Ill., for defendant in error.

Defendant in error, herein called plaintiff, brought suit in assumpsit against plaintiff in error, termed defendant herein, in the District Court of the United States for the Northern District of Illinois, Eastern Division, laying its damages at $4,500 for damages growing out of defendant's refusal to accept and pay for certain rosin tendered by plaintiff as agreed by it in its written contract.

The declaration contains one special and the common counts.The contract sued on reads as follows:

'This contract and agreement between Central Commercial Company a corporation organized and existing under the laws of the state of Illinois, herein called the buyer, and Jones-Dusenbury Company, a corporation organized and existing under the laws of the state of Louisiana, herein called the seller, witnesseth:

'First.The buyer agrees to buy from the seller and the seller agrees to sell to the buyer the entire delivery of the production of dross and chip rosin from the plant of A. E. Turner & Co. from April 1, 1912, to March 31, 1912. inclusive, and tendered prior to the termination of this contract, said deliveries to be made upon the yards of the Naval Stores Warehouse & Storage Company at Pensacola, and to be approximately six thousand (6,000) round barrels of dross and chip rosin, upon the terms and conditions named herein.

'Second.The price to be paid by the buyer and accepted by the seller for said dross and chip rosins on the yard of the Naval Stores Warehouse & Storage Company at Pensacola shall be twenty (20c.) cents per two hundred and eighty (280#) pounds below the average official closing Savannah markets for the corresponding grades of the week in which delivery is made on the terminals or in the warehouse aforesaid.

'Third.The buyer hereby agrees and covenants to pay on the dross and chip rosin delivered under this contract a fee of four (4c.) cents per barrel for initial storage to the Naval Stores Warehouse & Storage Company.

'Fourth.The seller agrees not to hold dross and chip rosin for a market, but to bill and deliver same to the buyer as fast as deliveries shall be made to the seller by A. E. Turner & Co., who deliver to seller as fast as manufactured in 100-barrel lots, the buyer paying for the same in Pensacola funds or the equivalent thereof.All rosins delivered under this contract shall be delivered in accordance with the requirements of the rules and customs of the Savannah Board of Trade as to grades, cooperage, and weights.

'In witness whereof the said parties have caused these presents to be executed by their duly authorized officers on this 17th day of May, A.D. 1912.

'(Signed) Central Commercial Company,

'By Anthony Cosner, Treas.

'(Signed) Jones-Dusenbury Company,

'By T. A. Jennings, Vice President.

'Signed, sealed, and delivered in presence of:

'As to Central Commercial Co.:

'M. M. Russell.

'L. N. Waite.

'As to Jones-Dusenbury Co.:

'L. N. Waite.

'M. M. Russell.'

In pursuance of the contract plaintiff tendered to defendant for delivery about 6,400 barrels of rosin.Of these defendant refused to accept a large number, on the alleged ground that of the amount still on hand and not yet accepted and paid for some 600 barrels were not the manufacture of Turner & Co. Thereupon such further transactions were had between the parties that plaintiff, after due notice to defendant, sold the same at less than the contract price, whereby there became due to plaintiff from defendant upon breach of said contract damages in the sum of $4,500, for the recovery of which sum this suit was instituted.

On the trial the proceedings were such that the jury rendered a verdict in favor of plaintiff, and found against a certain set-off to such damages filed by defendant for $3,845.77; motions to direct a verdict having been duly made and denied, and exception saved.On submission being duly made, the jury made affirmative answer to the following three questions:

(1) Were all the barrels of rosin which were delivered or tendered by plaintiff to defendant manufactured by A. E. Turner & Co.?

(2) From the evidence respecting the course of dealing between the parties under the contract, do you find that it was the understanding and intention of the parties that the plaintiff had the right of possession or control of the goods in controversy until they were paid for?

(3) Did plaintiff exercise due diligence in selling the 578 round barrels at Pensacola?

Motion for new trial was made and denied.The errors assigned are:

(1) That the court received evidence of a trade custom that rosin is delivered only when payment is made therefor, whereas the same was not pleaded and was inconsistent with the contract.

(2) That the court received extraneous evidence of the course of dealing with reference to shipping, etc., because such course of dealing was not pleaded and the contract not ambiguous.

(3) That the court received in evidence a certain salesbook claimed not to be competent.

(4) That the court received evidence that plaintiff stored, took out warehouse receipts for, and insured rosin in its own name.

(5)The court overruled the several motions for instructed verdicts and in arrest.

(6)The court instructed the jury to include interest not recoverable as damages.

Before KOHLSAAT, ALSCHULER, and EVANS, Circuit Judges.

KOHLSAAT Circuit Judge(after stating the facts as above).

The trial court found that the contract was ambiguous in respect to the intention of the parties with regard to the matter of possession.To make the terms clear he admitted proof of the custom of the trade and the course of business between the parties, showing in whose name the warehouse receipts were taken out, the methods followed in loading into cars, payment, and evidence as to other matters involved deemed obscure in the contract, and necessary in arriving at an understanding of the conduct of the parties following their agreement.

We are of the opinion that the contract was obscure in the respects indicated by the trial court, and that the court was justified in receiving the evidence complained of.In doing so the contract was not modified.Nor was it essential that the customs and matters constituting the extraneous matters introduced be pleaded.The testimony was as to a general custom prevailing in the rosin trade, wherever located.The evidence was competent.Steidtmann v. Joseph Lay Co.,234 Ill. 84, 84 N.E. 640, in which it is said:

'The testimony of witnesses is admissible to explain not only technical words of art or science, but words or phrases having a local meaning or a special meaning in a particular calling, trade, business, or profession.* * * A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business.And this is so whether he knew of the custom or not.'

SeeLowe v. Lehman,15 Ohio St. 179;Collins Ice Cream Co. v. Stephens,189 Ill. 200, 59 N.E. 524;Hewitt v. John Week Lumber Co.,77 Wis. 548, 46 N.W. 822;Colman v. Clements,23 Cal. 245;Hansbrough v. Neal,94 Va. 722, 27 S.E. 593;Field v. Lelean, 6 H. & N. 617, 158 Eng.Rep. 255.

We do not find justification for the contention that the custom was inconsistent with the terms of the contract.

As appears from the contract, defendant contracted with plaintiff for the product of A. E. Turner & Co., and only that.The defense interposed was that plaintiff undertook to work off upon defendant rosin of other manufacturers.To refute this charge plaintiff, among other evidence, introduced the testimony of the two alleged best qualified witnesses, who swore unqualifiedly to the statement that no rosin but that manufactured by Turner & Co. within the conditions named in the contract was delivered by plaintiff to defendant, nor was any other included in the rosin involved in this suit.A salesbook was also introduced.This was competent to show the quantity delivered, among other things.No evidence was introduced in rebuttal as to this point.

Defendant now raises the point that plaintiff had better evidence as to the rosin manufactured by Turner & Co., viz. a certain book alleged to contain records of the daily production and all other rosin manufactured by Turner & Co. during the contract period, which, defendant insists, should have been introduced in evidence on the trial as being the best evidence of such production.

The contention is, to say the least, novel.The evidence introduced was in no sense secondary.It was primary in its nature.There was no denial of it.It may be that defendant could have found in the production records some better data for cross-examination, or evidence more conclusive to its counsel's mind, but the proposition that the rule requiring the production of the best evidence applies to circumstances and conditions such as here prevail does not commend itself to us.There seems to have been enough competent evidence adduced to satisfy the jury on that point, and we are not disposed to interfere.Whatever degrees of evidence existed in the trial were merely those as to the weight to be given to it and not as to its competency.No reason appears why defendant, had it desired, could not have procured access to the book, if there were one, in the usual way.

Defendant complains of the ruling of the court in receiving evidence that plaintiff stored and took warehouse receipts for and...