Crowell Bros. v. Panhandle Grain & Elevator Co.
| Decision Date | 09 February 1921 |
| Docket Number | 5522. |
| Citation | 271 F. 129 |
| Parties | CROWELL BROS. v. PANHANDLE GRAIN & ELEVATOR CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rehearing Denied May 7, 1921.
E. W Snoddy, of Alva, Okl. (J. P. Grove, Sr., of Alva, Okl., on the brief), for plaintiffs in error.
John Tomerlin, of Oklahoma City, Okl. (W. H. Kimbrough, of Amarillo, Tex., and W. F. Wilson, of Oklahoma City, Okl., on the brief), for defendant in error.
Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.
The writ of error in this case assails the legality of the proceedings at the trial of an action at law which resulted in a judgment against Crowell Bros., partners and sellers and in favor of the Panhandle Grain & Elevator Company, a corporation, buyer of two cars of country-run black amber and orange cane seed, for $11,623.13, which the buyer had paid before it discovered the fact that the contents of the cars consisted of such a mixture of red amber cane seed with black amber and orange cane seed that its delivery by the sellers fails to constitute a performance of the contract upon their part. The contract was made in February, 1918. Crowell Bros. shipped the two car loads from Alva, Okl., to Fort Worth, Tex., and drew drafts on the Panhandle Company for the purchase price thereof which it paid before the cars arrived at Forth Worth. Upon their arrival they were unloaded and the Panhandle Company discovered that they did not contain the cane seed it had bought, but a much less valuable mixture. Thereupon, on April 12, 1918, it notified Crowell Bros. of the character of the contents of the cars, that it had not bought the cane seed they contained, and that this cane seed was in storage with the Fort Worth Elevator Company, subject to their disposition. Receiving no answer to this letter, it wrote them again on April 18, 1918, sent them in its letter a statement of its expenses in receiving, storing, and obtaining an inspection of the cane seed, stated in its letter that it had drawn on them for the purchase price it had paid and for its expenses, amounting to $10,889.91, that if they would not pay the draft it would dispose of the seed as soon as possible for their account, that it should expect them to protect it against loss, that it would be better for them to handle the seed; but, if it was obliged to do so, it would handle it to the best advantage it could for their account. The Panhandle Company drew its draft for the $10,889.91, but Crowell Bros. neither paid it nor answered the company's letter. Therefore, on July 31, 1918, the Panhandle Company filed its complaint, setting forth the alleged facts which have been recited, and commenced this action. Crowell Bros. answered with a denial that the cane seed in the two cars was not of the character, kind, and quality sold to the plaintiff, and denied generally every material allegation of the complaint.
The first specification of error is the overruling of the Crowell Bros.' demurrer to the plaintiff's evidence, for the reason that such evidence was insufficient to sustain a verdict in favor of the Panhandle Company. Counsel devote the larger part of their brief to the discussion of the sufficiency of the evidence in this case to sustain the judgment. But this demurrer was interposed at the close of the Panhandle Company's evidence, it was overruled and an exception taken; but the defendants did not stand upon their exception, but thereafter introduced the testimony of many witnesses on the merits of the case in their own behalf. Defendants waive a demurrer to plaintiff's evidence at the close of its main case by the subsequent introduction of evidence to the merits in their own behalf. No request to instruct the jury to return a verdict for the defendants, no demurrer to the evidence was interposed after the close of all the evidence, and the jury returned a verdict for the Panhandle Company. The result is that the questions, was there any substantial evidence to sustain the verdict and judgment? and was the evidence sufficient to sustain them have not been so presented under the established rules of the federal courts that they may be reviewed or considered by this court, and it must treat them as conclusively answered in the affirmative by the verdict. Barnard v. Randle, 110 F. 906, 907, 49 C.C.A.
Counsel for Crowell Bros. complain that the court below refused to submit to the jury, at their request, the question whether the Panhandle Company, after its refusal to accept the delivery of the seed as a performance of the contract and after its offer to return it to Crowell Bros., did not make such an inconsistent use of it as constituted a waiver of its refusal to accept it and a ratification of the original contract, and that the court charged the jury that there was no substantial evidence in the case to sustain a finding to that effect. The evidence upon which his complaint is founded tended to establish these facts: After the Panhandle Company had refused to accept the cane seed in performance of the contract, had stored it with the Fort Worth Elevator Company, had drawn its draft on Crowell Bros. for the purchase price it had paid them, and had on April 18, 1918, notified them of its acts in this regard, and that if they did not pay its draft it would be better for them to handle the seed themselves, but that if they did not it would expect them to protect it against loss, and it would proceed to sell and handle it to the best advantage it possibly could for their account, and they had not answered any of the letters, it caused the seed that had been in one of the cars to be recleaned to discover what shrinkage had resulted, sent Crowell Bros. a statement of the result of the recleaning and weighing in a letter dated June 27, 1918, and drew a draft on them for $292.95, which it claimed they owed it regardless of the quality of the seed, because the contract price of the seed it actually received was $292.95 less than the amount of the drafts for the purchase price thereof which it had paid before the seed arrived. Again, when the seed arrived at Forth Worth it was unloaded and placed in the elevator of the Forth Worth Elevator Company in the name of the Panhandle Company, and there it remained and that company paid the storage and insurance charges thereon up to the time of the trial. Moreover, the Panhandle Company borrowed of the Forth Worth Elevator Company $1,800, but there was no evidence that it secured the payment of this debt by any lien on, or pledge of, this cane seed, or that the loan was made in reliance thereon.
Counsel argue that the evidence which has now been recited tended to prove that, although the Panhandle Company elected to rescind the contract in April, 1918, it affirmed and ratified it in June, 1918, and later. But this action is not founded on a rescission of the contract. It is based upon an affirmation thereof and on the failure of Crowell Bros. to perform their part of it. It is an action for money had and received by Crowell Bros. for the use and benefit of the Panhandle Company, for the moneys it paid before the seed arrived on the drafts of Crowell Bros. for the contract price of black amber and orange cane seed in the belief that they had shipped that seed when they had not, and the defense of Crowell Bros. was that the cane seed they shipped was that which they contracted to sell. Their answer to the plaintiff was a denial of its assertion that the cane seed they shipped was not the article described in the contract. Their defense is in fact a confession that they shipped the seed and an avoidance of the effect thereof. Moreover, there is nothing in the evidence upon which they now seek to rely inconsistent with the original position of the plaintiff that it did not and would not accept the seed as a performance of the contract and that it held it subject to the order and for the benefit of Crowell Bros., and there was no error in the charge of the court that there was no evidence in the case that would sustain a finding by the jury that the Panhandle Company ever accepted the cane seed or waived its refusal to take it in performance of the contract, nor was there any error in the refusal of the court, at the request of Crowell Bros., to instruct the jury otherwise.
Mr James E. Robinson was the chief grain inspector of the Fort Worth Grain...
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