Crystal Palace Flouring-Mills Co. v. Butterfield

• Decision Date: 11 June 1900
• Citation: 61 P. 479,15 Colo.App. 246
• Parties: CRYSTAL PALACE FLOURING-MILLS CO. v. BUTTERFIELD.
• Court: Colorado Court of Appeals

61 P. 479

15 Colo.App. 246

CRYSTAL PALACE FLOURING-MILLS CO. v. BUTTERFIELD.

Court of Appeals of Colorado

June 11, 1900

Appeal from district court, Arapahoe county.

Action by the Crystal Palace Flouring-Mills Company against L Butterfield. From a judgment for defendant, plaintiff appeals. Reversed.

F.E Gregg, for appellant.

Rogers & Stair, for appellee.

THOMSON J.

When this case came on for trial the court sustained an objection by the defendant to the introduction of any evidence, and entered judgment of dismissal against the plaintiff. The ground of the motion, and the reason assigned for the judgment, were that the complaint did not state facts sufficient to constitute a cause of action. The court, in rendering its judgment, stated its ground of objection to the complaint specifically as follows: "That the contract set out in the complaint herein was a contract for the delivery of grain at Denver, Colorado, and that the contract provides for payment for the said grain at Denver, Colo., and that the complaint should have alleged that tender of the money for the purchase price of said grain was made to defendant at Denver, Colo., before bringing this action." That objection, and two others, namely, that the contract was within the statute of frauds, and therefore void, and that the allegation of damage was insufficient, are presented to us by the argument of counsel.

The contract, as it was set forth in the complaint, consisted of a number of letters and telegrams which passed between the parties. The following is the history of the correspondence as given in that pleading: On the 26th day of September 1896, the defendant sent by mail a letter to the plaintiff as follows: "Denver, Colo., Sept. 26th, 1896. The Crystal Palace Flour Mills, Weatherford, Texas--Gentlemen: At the request of the agent of the Santa Fé R.R. at Denver, I am sending you to-day, under a separate cover, a sample of our Colorado wheat, marked 'No. 1.' All of our wheat here is hard spring wheat, and will average 59 lbs.; and at to-day's rate I could sell this wheat to you at 76 1/2c at Weatherford, but I hope to be able to get a lower rate, by at least 10c. per hundred, or 6c. per bushel, in a day or two. If you can use this wheat, please wire me, and I will gather up 5,000 bu. or 10,000 bu., and, if possible to get a lower rate, I will let you know at once. Please let me hear from you at once. Wheat is very strong East, and is advancing every day. Yours, truly, L. Butterfield." The plaintiff received this letter three days afterwards, and immediately telegraphed the following answer: "Weatherford, Texas, 9/29, 1896. To L. Butterfield, Denver, Colo.: Sample and quotation twenty-sixth received. Ship three thousand anyway, and ten thousand if you get ten cents lower freight rate. Draw through First Nat. Bank. Crystal Palace Flouring-Mills Co." To this telegram the defendant on the next day replied by wire as follows: "Denver, Colo., 30. To Crystal Flour Mills, Weatherford, Tex.: Will ship three thousand. If get lower rate, will advise. L. Butterfield." At the same time the defendant wrote and mailed to the plaintiff the following letter: "Denver, Colo., Sept. 30th, 1896. Crystal Palace Flour Mills, Weatherford, Texas--Gentlemen: I have your message of the 29th, saying sample received; will take 3,000 bushels at price, 76 1/2c f.o.b. Weatherford, and, if I can get a lower rate, will take more; and to draw through the First National Bank. All right. I am trying to get a lower rate, and so wired you this morning, and advised that I would ship the 3,000 bushels, and, as soon as I can get a lower rate, will advise you. I will know to-morrow or next day. I will get the wheat off as soon as possible, but it may be delayed a few days on account of a carnival here in Denver the last of this week and all the next week, that is creating a great deal of excitement, but I will get it off as soon as possible. I hope to be able to sell you a good many cars of wheat. Yours, truly, L. Butterfield." On the 19th day of October, 1896, the plaintiff telegraphed the defendant as follows: "Weatherford, Texas, 10/19, 1896. To L. Butterfield, Denver, Colo.: Wire immediately, our expense, when you will ship our wheat. Crystal Palace Flouring-Mills Co." The defendant replied to this by the following telegram: "Denver, Colo., Oct. 20, 1896. To Crystal Palace Flour Mills, Weatherford, Texas: Wheat off this week. Offer five thousand more, ninety Weatherford. L. Butterfield." Afterwards, on the 19th day of November, 1896, the...