Chas. H. Lilly Co. v. Brent

• Citation: 186 F. 700
• Decision Date: 06 February 1911
• Docket Number: 1,825.
• Parties: CHAS. H. LILLY CO. v. BRENT. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

186 F. 700

CHAS. H. LILLY CO. v. BRENT. ^[1]

No. 1,825.

United States Court of Appeals, Ninth Circuit.

February 6, 1911

John H Allen and Walter B. Allen, for plaintiff in error.

Harold Preston and E. M. Carr, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

Both parties to this action are engaged in the seed business. The defendant in error was plaintiff in the court below, where he brought the action to recover of the plaintiff in error defendant below, $3,024 for a certain carload of 270 bags of fancy cleaned true Kentucky blue grass seed of the alleged weight of 30,240 pounds, with interest and costs, alleged by the plaintiff to have been shipped to the defendant in pursuance of certain correspondence set forth in the complaint, consisting of a letter of the plaintiff to the defendant of date June 17, 1908, a telegram from the defendant to the plaintiff of date June 22, 1908, and a letter from the defendant to the plaintiff of date August 3 1908. Those letters and that telegram are as follows:

'Chas. S. Brent & Bro.

'Paris, Ky., June 17, 1908.

'Mess. Chas. H. Lilly & Co., Seattle, Wash.-- Dear Sirs: We offer you, for wire acceptance and if unsold 325 bags of Fancy Cleaned True Kentucky Blue Grass Seed at $1.40 per bu., f.o.b. cars here, August, Sept. or October shipment. Samples of the new crop will not be ready before the first of August, but we will guarantee to deliver only new crop and that it will test 21 pounds to the measured bushel. Hoping to be favored with your order, we are

'Yours truly,

Chas. S. Brent & Co.' 'Seattle, Wn., June 22.

'Chas. S. Brent & Bro.

'Book order one minimum car Kentucky blue grass, yours 17th.

'The Chas. H. Lilly Co.' 'Seattle, August 3, 1908.

'Chas. S. Brent & Bro., Paris, Kentucky-- Gentlemen: Referring to our requisition No. 7272, June 22d, please ship Kentucky blue grass at your earliest convenience. We are advised that minimum car load weight is 30,000 pounds and through rate $1.35. Please route via L. & N., St. Louis, C. B. & Q. and N. P.

'Yours truly,

The Chas. H. Lilly Co., Per N. H. Nivision.

The complaint also contained this allegation:

'That by the general custom of seed merchants in the United States of America, existing during all of the year 1908 and long prior thereto and ever since, the weight of a bushel of Kentucky blue grass seed was and is fixed at 14 pounds for the purpose of ascertaining and determining the price or value of any quantity of such seed sold at a fixed rate per bushel. That at all times herein mentioned the said general custom of seed merchants was well known to the defendant as well as to the plaintiff, and all of the dealings between the plaintiff and defendant, hereinafter alleged and described were made subject to and controlled by said general custom.'

By its answer the defendant put in issue the allegations of the complaint in respect to the custom of seed merchants.

The defendant admitted the correspondence set out in the complaint and above quoted, and set up in defense that the defendant, on or about June 22, 1908, purchased of the plaintiff the blue grass seed referred to in the foregoing correspondence, upon the following written requisition, to wit:

'The Chas. H. Lilly Co.

'Established 1885.

'No. 7,272. 'Five requisition number.

'Send bill in duplicate to Seattle.

'Purchase Contract.

'Seattle, June 22, 1908.

'Chas. S. Brent & Bro., Paris Kentucky:

'Ship to the Chas. H. Lilly Co., Seattle, Wash.

'Ship when-- Aug. Sent Oct., 1908, our option.

'No drayage allowed on this order.

'The following articles:

'One minimum car New Crop Fancy Cleaned True Kentucky Blue Grass Seed weighing 21 lbs. to the bushel at $1.40 per bushel, 'F.o.b. cars Paris, Ky.'

'Per your quotation June 17th.

'Confirming our wire to you this date as follows: 'Book order one minimum car Kentucky Blue Grass Yours Seventeenth.'

'Ordered by F.L.

'Date received 9/15.

'Amt. received 30,240.

'Tally sheet 5,634.

'Invoice date 8/22.

'Amount 2,006.67.

'Freight 408.24.

'Paid Sep. 15, 1908.'

The answer alleged that thereafter, to wit, on or about August 23, 1908, the plaintiff loaded on board car at Paris, Ky., 30,240 pounds of such seed, amounting to 1,440 bushels, and shipped the same to the defendant, in payment of which the defendant tendered to the plaintiff $2,016 in accordance with the contract between the parties, having previously paid freight and other charges thereon, and that it continues such tender.

The case was tried before the court with a jury, and upon the conclusion of all of the evidence a peremptory verdict for the plaintiff was directed by the court and accordingly returned, to which action an exception was reserved by the defendant.

The record shows that the real controversy between the parties was whether the contract called for 14 or 21 pounds of seed to the bushel. The alleged custom among seedmen to regard 14 pounds of such seed as constituting a bushel was put in issue by the answer, and, while there was much testimony on behalf of the plaintiff tending to support his allegation in that regard, the defendant introduced testimony tending to show that the custom did not exist west of the Missouri river, that it never heard of such custom, and that in the Seattle market the custom was to buy and sell by the pound only. The court below, in passing upon the motion for a new trial which was made, recognized the correctness of the obvious point that, if the question of such custom was an open one, the case should have been submitted to the jury; but the learned judge was of the opinion that the correspondence precluded the defendant from disputing the claim of the plaintiff that 14 pounds of such seed constituted a bushel according to the terms of the contract.

Is that so? In the first place, it is to be noted that the plaintiff's evidence in respect to the custom was admitted over the defendant's objection and exception; the objection being that there was no ambiguity about the written contract, but, on the contrary, that it was clear and specific to the effect that a bushel was to consist of 21 pounds of seed. The only ground for the admission of such evidence was that it might aid in the true construction of the contract. If needed for that purpose, it was clearly a matter for the jury, since the evidence upon the subject was conflicting; and such could only have been the theory upon which the alleged custom was set up in the complaint.

The original offer of the plaintiff to the defendant was '325 bags of Fancy Cleaned True Kentucky Blue Grass Seed at $1.40 per bu., f.o.b. cars' at Paris, Ky., guaranteed to 'test 21 pounds to the measured bushel,' August September, or October shipment. The defendant's telegraphic response of date June 22d to that offer was, 'Book order one minimum car Kentucky blue grass, yours 17th. ' This telegram was followed on the same day by the defendant's 'requisition' (Form No. 7,272) confirming its telegram, and expressly describing the article ordered as: 'One minimum car New Crop Fancy Cleaned...