Crescent Mfg. Co. v. Patterson Mfg. Co.

• Decision Date: 15 February 1912
• Docket Number: 1,048.
• Citation: 195 F. 382
• Parties: CRESCENT MFG. CO. v. PATTERSON MFG. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

195 F. 382

CRESCENT MFG. CO. v. PATTERSON MFG. CO.

No. 1,048.

United States Court of Appeals, Fourth Circuit.

February 15, 1912

Henry K. Osborne (Bomar & Osborne, on the brief) for plaintiff in error.

Charles W. Tillett (Tillett & Guthrie, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and McDOWELL and CONNOR, District judges.

PRITCHARD Circuit Judge.

This was an action at law instituted by the defendant in error (plaintiff below) in the district of South Carolina against the plaintiff in error (defendant below) to recover $2,076.50, amount alleged to be due for cotton yarns sold by the plaintiff to the defendant during the year 1909. The plaintiff was a manufacturer of cotton yarns in Cabarrus county, N.C. The defendant was a manufacturer of hosiery at Spartanburg, S.C. Certain telegrams and letters were introduced for the purpose of showing the contract between the parties, but, owing to the condition of the record, we do not deem it necessary to give an extended statement of facts. At the close of the testimony the learned judge below directed the jury to return a verdict in favor of the plaintiff in the sum of $2,537.08, and it is from this judgment that the defendant below has brought the case to this court upon a writ of error.

It appears that plaintiff made a motion in the court below for a judgment in its favor, and it also appears that the defendant made a similar motion. The following statements taken from the record show what transpired at the close of all of the evidence:

'Mr Bomar: We ask your honor to direct a verdict in this case in favor of the defendants.

'Mr. Osborne: We had intended to ask your honor to direct a verdict to be rendered in favor of the plaintiffs for the amount that was due under the terms of the contract, that is, for the stuff that was furnished, less the amount that we have been damaged by reason of their failure to furnish the yarn, but it may as well be all brought up together, and we do now formally ask your honor to instruct the jury to bring in a verdict for the plaintiffs for the amount that is conceded to be due them, less the amount of damage that the evidence shows that the defendants suffered by reason of their failure to furnish the yarn under the contract.

'Court: This case, as it now appears, is practically decided by the ruling of the court admitting the letter of plaintiffs of April 8th. Mr. Foreman, both sides agree that there is no disputed question of fact. It is simply a question of law, which it is the duty of the court to decide. The court therefore instructs you to find a verdict for the plaintiffs.'

Thus it will be seen that both parties moved for a directed verdict. Under the circumstances here, following Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654, Sena v. American Co., 220 U.S. 497, 501, 31 Sup.Ct. 488, 55 L.Ed. 559, and Lawton v. Carpenter, 195 F. 362, 115 C.C.A. . . . , decided by this court at this term, we are of opinion that the decision of the lower court should be affirmed.

Affirmed.

CONNOR District Judge (concurring).

By a different process of approaching and dealing with this case, I come to the same conclusion reached by the majority of the court. For the reasons, which I endeavored to set forth in Lawton v. Carpenter, at this term, I think that plaintiff in error is entitled to have its bill of exceptions and assignment of error passed upon. The question is whether the court below correctly interpreted the course pursued by counsel and correctly instructed the jury upon the law. I do not think that the doctrine of Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654, and Empire Cattle Co. v. Railway, 210 U.S. 1, 28 Sup.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70, deprives the plaintiff of this right, or relieves the court of this duty.

The bill of exceptions presents very clearly the question presented for our decision, disclosing the following undisputed facts: On March 30, 1909, Mr. Lancaster, treasurer of the Crescent Manufacturing Company, of Spartanburg, S.C., called herein defendant, wrote a letter to Mr. Cannon, of Concord, N.C., president of the Patterson Manufacturing Company, called herein plaintiff, in regard to an existing contract for the purchase of 50,000 pounds of cotton yarn. In the last clause of the letter he writes:

'Please advise us if you will accept an additional order of 50,000 pounds, to be shipped as soon as this one is completed, at same price.'

This letter was followed by a correspondence in regard to prices. On April 7, 1909, plaintiff, by wire, proposed prices, to which defendant answered on same day by wire, 'Telegram received, accept,' and on same day wrote and mailed a letter to plaintiff confirming the proposition and acceptance, adding these words, 'Shipments on the contract to begin at expiration of present contract. ' On April 8, 1909, plaintiff, by its president, wrote and mailed a letter to defendant, in the following words, to wit:

'Our telegram yesterday advising that 16 1/2 and 17 cents the best we could do on 14's and 16's, 50,000 lbs. additional to follow present contract which you now have with the Patterson Mfg. Co., and in reply we have your answer, to-wit: 'Telegram received, accept.' We take this to mean that you wish us to enter your order for 50,000 lbs., yarn additional, 14's at 16 1/2 ¢ less 2 and 2, freight paid, deliveries to follow present contract. We have entered this additional contract with the Patterson Mfg. Co., China Grove, N.C., and will have their best attention. We understand that all these deliveries are to be taken up by Sept. 1st, 1909, as we could not make such low prices as these and let deliveries run over further period as we will have our warehouse full of cotton and do not care to have yarn left over where it is made up on contract. Can give you deliveries just as fast as you want them if you let us know in time.'

This letter was received by Mr. Lancaster, treasurer of defendant. No acknowledgment or answer was made. This letter of April 8, 1909, closed the correspondence. Defendant ordered out installments of different quantities which were duly shipped by plaintiff until August 31, 1909. On September 1, 1909, Mr. Cannon, for plaintiff, wrote defendant:

'We are shipping your order of 8/31/09, as it was written before Sept. 1/09. On that date your contract expired by limitation. See Mr. Cannon's letter of 4/8/09, this states the condition on which the contract was accepted.'

The total quantity of yarn shipped on this contract was 26,114 pounds, leaving a balance of 23,886. Defendants on September 2, 1909, demanded the shipment of balance yarn on the contract. Plaintiff refused to ship any more yarn. The balance due, on account of the yarn shipped, is $2,067.00 for the recovery of which plaintiff brought this action. Defendant in its answer admitted the balance due, and set up a counterclaim for $836.01 for damages sustained by reason of the refusal of plaintiff to ship the balance of the 50,000 pounds....