Commodity Credit Corp. v. Rosenberg Bros. & Co.

• Decision Date: 13 May 1957
• Docket Number: No. 14884.,14884.
• Citation: 243 F.2d 504
• Parties: COMMODITY CREDIT CORPORATION, Appellant, v. ROSENBERG BROS. & CO., Inc., a Corporation, Appellee. ROSENBERG BROS. & CO., Inc., a Corporation, Appellant, v. COMMODITY CREDIT CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

243 F.2d 504 (1957)

COMMODITY CREDIT CORPORATION, Appellant, v. ROSENBERG BROS. & CO., Inc., a Corporation, Appellee.

ROSENBERG BROS. & CO., Inc., a Corporation, Appellant, v. COMMODITY CREDIT CORPORATION, Appellee.

No. 14884.

United States Court of Appeals Ninth Circuit.

March 7, 1957.

Rehearing Denied May 13, 1957.

COPYRIGHT MATERIAL OMITTED

Lloyd H. Burke, U. S. Atty., San Francisco, Cal., George Cochran Doub and Warren E. Burger, Asst. Attys. Gen., Carl Eardley and Melvin Richter, Attys., Washington, D. C., for appellant.

Lloyd Dinkelspiel, Edward W. Rosston, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., Melville Ehrlich, Washington, D. C., for appellee.

Before DENMAN, Chief Judge, and McALLISTER and BARNES, Circuit Judges.

McALLISTER, Circuit Judge.

Rosenberg Bros. & Co., Inc., hereinafter called "Rosenberg," sued the Commodity Credit Corporation, hereinafter called "Commodity" or "the government," for breach of contract, and, on a trial before the district court, sitting without a jury, secured a judgment in its favor in the amount of $160,366.88. Both parties appeal, Rosenberg claiming that it is entitled to more; the Commodity Credit Corporation claiming that it is entitled to nothing.

The background of the case is as follows: On September 10, 1947, pursuant to a government program to support and stabilize the prices of dried fruits, the Secretary of the Department of Agriculture, who was also the Chairman of the Commodity Credit Corporation, asked for offers for the sale of 30,000 tons of raisins and various quantities of other dried fruits. Rosenberg, on September 19, offered to sell 10,000 tons of raisins to Commodity at prices ranging between $151 and $152 per ton, according to the kind of containers used. Rosenberg's offer was accepted by Commodity on September 23. On September 24, a standard government contract was executed between Rosenberg and Commodity, by the terms of which Rosenberg agreed to deliver 10,000 tons of raisins to Commodity in the period October 1-December 15, 1947, upon demand and at the prices set forth in the contract. These raisins were never delivered in accordance with the contract. Rosenberg, at the time it executed the contract, did not have the raisins on hand or available. It was selling them in the expectation that raisins would drop in price sufficiently to enable it to fulfill the contract without loss. On October 1, 1947, the Department of Agriculture asked for further bids for the sale of dried fruits, including 31,000 tons of raisins. A week later, on October 8, Rosenberg offered to sell Commodity 10,000 tons of raisins, and on October 13, Commodity accepted Rosenberg's offer to the extent of 4,330 tons, priced at $149.40 per ton, and on the same day, a contract was executed for that quantity of raisins at the stated price.

On October 14, the Department of Agriculture announced further purchases, and asked for bids for an additional 60,000 tons of raisins. Rosenberg then requested cancellation of its contracts, but this request was denied.

On November 26, 1947, the purchasing program of raisins was modified by requiring all packers who thereafter sold Thompson seedless raisins (the kind here in question) to certify that they had paid the grower not less than $135.00 per ton.

At the time of the execution of the contracts, Rosenberg, as has been mentioned, had not purchased and did not have available raisins to fill the government contracts. It was selling short in the hope that raisins would drop in price sufficiently to enable it to fulfill the government contracts without loss. However, the growers refused to sell at the lower prices offered, and Rosenberg purchased only 800 tons during the period from September 1, 1947, to November 3, 1947, during which time it had agreed, in the written contract, to sell to the government a total of 14,330 tons of raisins.

After November 3, 1947, raisins were sold by growers in substantial quantities at prices ranging from $127.00 to $142.00 per ton. Since Rosenberg's normal processing and packing charges averaged $40.00 per ton, it was impossible for Rosenberg to purchase raisins from growers for sale to the government at $149.40 or $152.00 per ton, in compliance with its contracts, without suffering substantial loss.

The government continually demanded delivery of the raisins from Rosenberg; and Rosenberg continually refused to deliver, stating that it had no raisins available.

In January, 1948, the price of raisins dropped, and during that month, they were being sold by growers at prices ranging from $100.00 to $125.00 per ton. At that time, Rosenberg decided to make delivery to the government, since, at that price, it would be enabled to purchase raisins at the lower prices, and fulfill its government contracts.

On January 22, 1948, Rosenberg requested shipping instructions and asked for an amendment to the contract, relating, however, only to reinstating the tonnage and extending the delivery dates. The government agreed to an amendment reinstating the tonnage and extending the delivery dates, and further agreed not to hold Rosenberg for damages for nondelivery, or delay in delivery, in return for Rosenberg's waiving all carrying charges. Delivery of the orders was then made by Rosenberg during February and March, 1948. Vouchers for the raisins delivered were submitted by Rosenberg and paid by the government. Thereafter, Rosenberg filed a claim against the government for damages for breach of an implied contract, on the theory that the government, through changes in its program of purchasing raisins, had obstructed Rosenberg in the performance of its contract, and, at the same time, had increased the cost of such performance. Upon the government's rejection of its claim, Rosenberg brought the present action, and the district court, sitting without a jury, entered a judgment in favor of Rosenberg in the amount of $160,366.88, from which the government appeals.

It is the chief contention of the government that there was no implied contract with Rosenberg, and, consequently, no breach of such a contract.

Rosenberg claims that a "press release" issued by the Secretary of Agriculture at Albuquerque, New Mexico, on September 5, 1947,¹ forms the basis of the implied contract; and that, in effect, it became part of the contract when Rosenberg made an offer of sale of the raisins to the government based upon the terms of the press release, and upon which, the government accepted such offer. Rosenberg contends that the government breached its contract by purchases of raisins contrary to the terms of the press release and by subsequently imposing further conditions upon sales by Rosenberg which greatly increased the cost of Rosenberg's performance of its contract.

The government submits that the press release in question was not intended to create private contractual rights, and that it created none; that it contained no representations of a contractual nature; and that it was merely a declaration of policy.

When, on September 10, 1947, the government invited orders for the sale of 30,000 tons of raisins to be delivered during the period October 1, 1947 to December 15, 1947, there was no mention of its announcement of the press release of September 5, 1947. Furthermore, when, on September 19, 1947, Rosenberg submitted an offer to sell 10,000 tons of raisins to the government at prices ranging between $151.00 and $152.00 per ton, no reference was made, in such offer, to the press release. Finally, on September 23, 1947, when the government accepted Rosenberg's offer, and when, on the following day, a standard government contract was executed in which Rosenberg agreed to deliver 10,000 tons of raisins to the government during the period, October 1-December 15, 1947, upon demand and at the prices stated therein, no reference was made to the press release, either in the government's acceptance of Rosenberg's bid or in the terms of the formal written contract; and the same is likewise true of Rosenberg's sale to the government of 4,330 tons of raisins on October 13, 1947.

If this case is to be determined on the basis of written contractual stipulations between the parties — the invitation to bid, the bid, and the acceptance — the government is not liable to Rosenberg in any amount. It is only on the theory of some kind of implied contract that Rosenberg seeks to prevail.

Where the parties have deliberately put their engagement into writing, the writing is presumed to contain the entire contract, and all the prior and contemporaneous agreements are merged therein, and cannot be shown by parol evidence. The contract may be read in the light of surrounding circumstances in order more perfectly to understand the meaning and intent of the parties; but where a contract is unambiguous, there is no need to ascertain the meaning and intention of the parties outside of the terms of the agreement. United States v. Fidelity & Deposit Co. of Maryland, 2 Cir., 152 F. 596. The rule that the surrounding circumstances should be considered does not apply where the language of a written agreement is plain, and not susceptible of more than one meaning.

Rosenberg, however, relies upon the rule that each party to a contract impliedly agreed not to prevent the other party from performing, or to render performance impossible by any act of his own. It contends that the government agreed not to purchase more than 61,000 tons of raisins during its entire program, and, moreover, that the purchases would be made from processors and packers; and this contention is based solely on what was set forth in the press release above mentioned,² none of which was mentioned or referred to in the written contract executed between the government and Rosenberg. By virtue of the press release alone, Rosenberg founds its case on breach of implied contract. We do not consider that the government can be held to have agreed with Rosenberg,...