Edwards Mfg. Co. v. Bradford Co.

• Decision Date: 19 November 1923
• Docket Number: 30.
• Citation: 294 F. 176
• Parties: EDWARDS MFG. CO. v. BRADFORD CO.
• Court: U.S. Court of Appeals — Second Circuit

294 F. 176

EDWARDS MFG. CO. v. BRADFORD CO.

No. 30.

United States Court of Appeals, Second Circuit.

November 19, 1923

Zabriskie Sage, Kerr & Gray, of New York City (William E. Sims, of New York City, of counsel), for plaintiff in error.

Engelhard Pollak, Pitcher & Stern, of New York City (Walter H. Pollak and Carrol S. Loeb, both of New York City, of counsel), for defendant in error.

Writ of error to a judgment for $31,200 in favor of defendant in error, which was plaintiff below.

The parties will be referred to as aligned below.

The facts will be stated only so far as necessary to present the questions of law here reviewable.

On September 6, 1917, plaintiff made a contract in writing with the Japanese firm of Suzuki & Co. to sell 300 tons of sheet steel, 30 gauge, at 10 cents per pound; Shipment to be completed by the end of December, 1917.

Pursuant to the terms of this contract, Suzuki & Co., on September 24 1917, delivered to plaintiff a letter of credit for $70,000.

Daycock was the New York agent of defendant, an Ohio Corporation. Having learned that Aaron Hecht was in the market for export steel, defendant, in a letter from its office in Cincinnati, dated November 16, 1917, suggested to Daycock 'to get in touch' with Hecht, who was majority stockholder of plaintiff and a member of its executive committee. Daycock called on Hecht prior to November 22, 1917, and proposed to sell 28 gauge steel, and Hecht told him that plaintiff had an order for export to Japan of 30 gauge steel. After this conversation, Hecht telephoned to Mr. Kitahama of Suzuki & Co., who stated that it would be satisfactory if plaintiff shipped 29 gauge steel instead of 30 gauge.

After this and on or about November 22d Hecht informed Daycock that 'our customer, whom we had taken the order from for the Far East, was willing to accept twenty-nine gauge on his order of thirty gauge.' Under date of November 22, 1917, plaintiff received a letter (plaintiff's Exhibit 2) addressed to it and signed 'The Edwards Manufacturing Co., per W. H. Daycock, Jr., Manager New York Office," which read in part, 'This will confirm our having entered your order for' 350 net tons of 29 gauge steel at 6 cents per pound. 'As explained to your Mr. Hecht, it is our intention to complete the order on or before December 31, 1917, and we will do everything in our power to accomplish that end. It is understood that you will furnish us at once with a banker's letter of credit covering the amount involved in the above order.'

On November 22d, plaintiff acknowledged (plaintiff's Exhibit 3) receipt of 'your acceptance of our order,' stated that it would immediately open a credit for the full amount, approximately $42,000, and referred to the point that the terms were cash less 2 per cent.

On November 22d, defendant, per Daycock, wrote plaintiff (plaintiff's Exhibit 4), accepting the terms of cash less 2 per cent.

On November 22d, Daycock telegraphed defendant, 'Have closed with Hecht' 350 tons 29 gauge 'November and December shipment' 6 cents per pound, 'have mailed order letter credit follows tomorrow. ' The same day Daycock confirmed this telegram to defendant by written memorandum of the order described in the telegram.

On November 23d, plaintiff delivered to Daycock a letter of credit of Guaranty Trust Company of New York for about $42,000, and Daycock at once sent on the letter of credit to plaintiff at its main office in Cincinnati.

On November 24th, plaintiff wrote defendant, giving instructions to ship the steel to Seattle for export to Japan, and this letter was immediately forwarded to plaintiff at Cincinnati.

At one of the conferences between Daycock and Hecht, either on November 21st or 22d, Edward W. Edwards, president of plaintiff, was called on the long distance telephone, and he talked with Daycock and Hecht. There is a conflict between the testimony of Hecht, on the one hand, and Edward W. Edwards and H. W. Edwards, treasurer of plaintiff, on the other. The main point of difference related to time of delivery. Other details need not be recited. Both E.W. and H. W. Edwards tried to fill the contract, but found they could not do so.

On December 10th, defendant, per E. W. Edwards, wrote to plaintiff as follows:

'Our Mr. Daycock has explained to us the result of his visit to your office on Friday last and so that you may know our position in the matter, will say that when Mr. Daycock called us up from your office, he asked us if we could take an order for this material at $6.25 per 100# f.o.b. mill. We stated we could but could not finish it in December. This same information was given by the writer to Mr. Hecht, when Mr. Daycock handed the receiver to him.

'When the writer was through with the conversation and hung up the receiver here, he understood that we were to get an order for 350 tons No. 29 gauge at $6.25 per 100# f.o.b. mill, part delivery December and January. The order came in at $6.00 per 100#, December shipment complete, and as our mill was entirely unable to make December shipment, we endeavored to see if it could be secured in the market, but found it could not. We thereupon told our representative we could not enter the order because it was a physical impossibility to comply with the terms.

'If you wish us to enter this business for reasonable shipment and at the price which the writer understood over the telephone would get the business, we will enter the business. We are explaining our position clearly so that there will be no misunderstanding, and only regret the circumstances were such that we could not enter the business as per your wishes.

'We are asking our Mr. Daycock to see you in person so that he may get your decision.'

On the same date, E. W. Edwards wrote to Daycock:

'Inclosed find copy of letter to the Bradford Company. * * *

'Would suggest that you see them and tell them we are very anxious to do business with them, but we cannot agree to do impossibilities. I think it essential that you follow our letter up with a personal visit, and it might

be well for you to tell them, before the visit is over, that your instructions from us are to the effect that no contract is binding until acknowledged by our main office. I think it has been decided legally many times than an agent cannot bind a principle unless the agent has legal authority to do so. ' (Italics ours.)

December 17th, Daycock wrote plaintiff returning the letter of credit. This letter of credit had been in defendant's possession since November 23d, and on that day had been sent on to the main office in Cincinnati.

Defendant neither delivered nor tendered any of the steel. As the result of the failure to deliver, plaintiff brought this action to recover the difference between the contract price with defendant of 6 cents per pound and the resale contract price with Suzuki & Co. of 10 cents per pound.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

The trial court submitted three questions of fact to the jury (1) whether the contract with Suzuki & Co. was modified, (2) whether defendant had notice at the time of contracting with plaintiff that plaintiff had a then existing contract of sale to a Japanese customer, and (3) whether damages should be computed by taking the Suzuki contract on a long ton or a short ton basis.

Daycock had died before the trial, and, although Hecht's testimony in respect of questions (1) and (2) was uncontradicted, he was an interested witness, and, for that reason, the court submitted these questions to the jury.

As the jury decided question (3) in favor of defendant, i.e., computed on the short ton basis, that feature has disappeared from the case.

1. It is first contended that the court should have sent to the jury the question as to whether Daycock had authority to make the contract evidenced by plaintiff's Exhibits 2, 3, and 4.

We have examined, not only the printed record, but as well the typewritten transcript (submitted by consent) of additional colloquy between court and counsel.

Nowhere did counsel for defendant ask to go to the jury on this question, nor on the question as to whether, even if Daycock had not authority to bind defendant by the particular contract in question, nevertheless defendant's conduct amounted to a ratification of the contract. At the end of all the discussion, the court concluded that the question of ratification was one of law, to be decided by the court and not by the jury, and that, as he decided the question of ratification in favor of plaintiff, the question as to Daycock's authority did not require decision.

It is sometimes said by those who, perhaps, have not given the subject careful thought that questions as to the effect of motions to dismiss or direct or of failure to ask to go to the jury are technicalities in the invidious sense. They are not such, but, on the contrary are the technique of law or practice made necessary in order to prevent, if possible, repeated trials, and to make clear in jury cases what counsel contend are questions of law or of fact.

In the interest of just disposition, the court and counsel are entitled to know by definite request whether or not counsel desires questions to be submitted to the jury.

We need not set forth in detail the various motions made here by each party at the end of the case. It is enough to state that, at the close. of the whole case, plaintiff moved that the court direct a verdict in its favor, and that it leave with the jury no issues except the issue of the amount of damages dependent upon whether the contract with Suzuki & Co. called for long or short tons.

The court denied defendant's motion to dismiss the complaint but did not fully...