Crane v. C. Crane & Co.

• Decision Date: 21 January 1901
• Docket Number: 695.
• Citation: 105 F. 869
• Parties: CRANE et al. v. C. CRANE & CO.
• Court: U.S. Court of Appeals — Seventh Circuit

105 F. 869

CRANE et al. v. C. CRANE & CO.

No. 695.

United States Court of Appeals, Seventh Circuit.

January 21, 1901

The action in the Circuit Court was in assumpsit upon the common counts by the defendant in error against the plaintiffs in error, to recover the value of certain lumber sold and delivered by the latter to the former. The account annexed was for balances due upon merchandise sold on twenty-three different dates, running from the 22nd of February, 1898, to the 20th of May, 1898, inclusive, amounting in all to four thousand and fifty-seven dollars and twenty-three cents.

Against this the plaintiffs in error sought to recoup or set off the damages said to have been suffered by them, in the failure of the defendant in error to fill three certain orders relating to dock oak lumber of the dates of October 19th, 1897 January 31st, 1898 and April 8th, 1898; but at the conclusion of the evidence, the court instructed the jury to disregard these claims, and return a verdict for the plaintiff for the full amount claimed. Error to this instruction is assigned.

It is insisted by the plaintiffs in error that in December, 1896 they made a contract with the defendant in error, resting wholly in parole, however, by the terms of which the latter was to furnish to the former all the dock oak that the former would require for their trade in the Chicago market during the year 1897, at certain prices not in dispute, and that this contract was broken in the failure to fill the order of October 19th, 1897. It is insisted, also, that in January 1898, a like contract was made for the year 1898, except that the price was to be one dollar per thousand feet in excess of the prices for the preceding year, and that this contract was broken in the failure to fill the orders of January 1st, 1898, and April 8th, 1898 respectively.

The defendant in error had been for many years engaged in cutting, manufacturing, and selling lumber largely at wholesale with their principal place of business at Cincinnati; the plaintiffs in error had for nine years been engaged in Chicago in the business of buying and selling hard wood lumber, including dock oak. In supplying their customers in this trade the plaintiffs in error dealt largely with the defendant in error. It does not appear that the plaintiffs in error were manufacturers, or that the lumber purchased by them went into use or consumption by them, except as they resold it to their customers. They were exclusively lumber merchants, obtaining their supplies largely from the defendant in error, and reselling them to their own customers.

There was no evidence that the defendant in error accepted the orders of October 19th, 1897, or January 31st, 1898, or that, independently of the general contracts relied upon, they agreed to fill them; nor was there evidence that the plaintiffs in error, in reliance upon the alleged general contract of January, 1898, had, previous to these orders, entered into any contracts that required the lumber ordered.

The order of April 8th was sent by mail. Respecting this defendant in error wrote: 'We are doing all we can on all of your orders and are shipping you more lumber than to any one of our other customers. I have called the boys' attention to-night to the 24' and will hustle it all I can.'

Omer F. Crane, one of the plaintiffs in error, testifies that a short time subsequently he took this order to the defendant in error, and had the following conversation with C. Crane, its president: 'He' (C. Crane) 'looked it over and said he would have to have more money for this lot of stuff. I told him we had made out contracts and we couldn't stand any more money than that. He said that he wouldn't fill it. So that was about all that was said that day. The next day I said 'What are you going to do about this thing? Are you going to fill it or not? If you are not going to fill it, I am going to Parkersburg and get it filled.' He said, 'I will tell you what I will do. I will take this order and fill it, but I won't fill any more at those prices.' So he got up with the letter and I says, 'Will you sign this acceptance,' and he said 'that is not necessary. I will have it entered on the book, and will have it filled.' And we walked over to Mr. Mowbray and said, 'Fred, put this order on the book and see it is filled, and don't fill any more at those prices without first consulting me."' This testimony is uncontradicted.

The order of April 8th was to have been filled within the next thirty and sixty days. It was but partially filled. In the meantime prices rose, and the defendant in error failed to complete the order.

In the general lumber dealings between the plaintiffs in error and defendant in error there was no particular agreement respecting the time of payment. Sometimes the lumber was paid for promptly, and sometimes by the giving of sixty or ninety days paper. On this general account the plaintiffs in error were in arrears, both for the months of April and May, amounting June 2nd, according to their own letter, to the sum of thirty-eight hundred dollars, about twenty-one hundred of which was for lumber shipped under the order of April 8th. Respecting this arrearage the defendant in error wrote, May 31st, 1898, as follows: 'I want you to send us what is due us for April at once; also the May account as soon as you get it checked up. It is just our time for laying in timber and we are using all the money we can get hold of, and we are not in shape to give long credit to anybody. ' Replying to this, June 2nd, 1898, the plaintiffs in error wrote: 'We owe you about $3800.00 which amount we will hold until you make a showing that you are going to furnish the oak. We don't blame the firms for kicking; (the firms with whom it is claimed plaintiffs in error had contracted to furnish dock oak) they have the docks torn up, have 2 or 3 tugs and pile driver laying idle waiting for Oak. The different firms owe us about $6000.00; they say they would not pay us one cent of money until we fill their orders. The $3800. that we hold of yours will be a very small per cent. of the amount it will cost you if you don't go ahead and fill the order. ' To this, defendant in error, June 3rd, 1898, replied as follows: 'We will not load another board of lumber until we get paid for what we have already sent you. Now, here are bills that are 60 days past due, as this lumber was all to be paid for within ten days after date of invoice less 2%. We do not care about giving credit any further than we have, and we will not send any more lumber until this is paid for.'

The further facts are stated in the opinion.

Walter Olds, for plaintiff in error.

J. K. Boyesen, for defendant in error.

Before WOODS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

GROSSCUP Circuit Judge,, as follows:

The question lying at the threshold of this case is whether the so-called contract of December, 1896, relating to the sale of dock oak lumber for the year 1897,...