Florida Towing Corporation v. Oliver J. Olson & Co.
| Decision Date | 21 May 1970 |
| Docket Number | No. 28336.,28336. |
| Citation | 426 F.2d 896 |
| Parties | FLORIDA TOWING CORPORATION, a Florida Corporation, Plaintiff-Appellant, v. OLIVER J. OLSON & CO., a Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George D. Gabel, Jr., Jacksonville, Fla., for plaintiff-appellant.
James E. Cobb, Mathews, Osborne & Ehrlich, Jacksonville, Fla., for defendant-appellee.
Before PHILLIPS,* BELL and SIMPSON, Circuit Judges.
Florida Towing Corporation1 brought this action against Oliver J. Olson & Co.2 in the United States District Court for the Middle District of Florida to recover $15,000. Florida Towing undertook to make a service of process in the case on Olson, under Florida's long arm statute (F.S.A. § 48.181).3
The facts, as reflected by an affidavit filed by Olson in support of its motion to quash the service and dismiss the action, counter-affidavits filed by Florida Towing, and certain written exhibits are these:
At all times here material, Olson was the owner of the "Barge Marguerita,"5 formerly "Mary Olson."
Olson is a California corporation, with its principal office in San Mateo, California, and branch offices in Long Beach, California, and Coos Bay and Portland, Oregon. Its principal business is the transportation of lumber and lumber products from the Pacific Northwest to Southern California, and the minor part of its business is the transportation of petroleum products from Southern California to the Pacific Northwest.
Florida Towing is a Florida corporation.
Near the end of the year 1966, Maxwell Harris, president of Maxwell Harris Company, Inc., and a broker in marine transportation, located in New York and Boston, contacted James W. Adams, a broker in marine transportation, whose office was in New Orleans, Louisiana, and who was president of Adams Marine Service, Inc.
Harris requested Adams to endeavor to find a buyer for Olson's "Barge Marguerita" on behalf of his West Coast contact, Charles Mathe, who was vice president of T. W. Wyatt Co., Inc.,6 a ship broker located in San Francisco, California.
Harris gave Adams a description of the "Barge Marguerita" and forwarded "prints" of the Barge to him.
During the period from May 1967 through January 1968, Wyatt, apparently acting as broker for Olson through Harris, carried on negotiations for the sale of several of Olson's vessels to Gulf Atlantic Towing Corporation,7 which had no connection with Florida Towing. Apparently, the "Barge Marguerita" was not involved in the transactions with Gulf Atlantic, as it was only casually mentioned once in a letter dated May 11, 1967, from Harris to Gulf Atlantic, and is not again mentioned in the correspondence between Harris and Gulf Atlantic during the period above mentioned.
In his affidavit, Adams averred that "over a period of about two years," he "discussed the barge at various times with * * * W. T. Coppedge, President of Florida Towing Corporation, in Jacksonville, Florida, and, finally in August 1968," Adams "was able to interest him in looking into possibly purchasing the barge." However, Adams lacked sufficient information to properly describe the Barge to Coppedge. To obtain that information, Adams went to San Francisco in August 1968 and contacted Mathe, who introduced him to Whit Olson, vice president of Olson. Whit Olson gave Adams part of the information he desired and asked J. Dillen, a surveyor who surveyed the Barge in 1968 in behalf of Olson, to give Adams an estimate of the approximate cost to put the Barge in condition to obtain certification of it by the United States Coast Guard and the American Bureau of Shipping. Dillen gave Adams an estimate therefor of $28,000.
Neither Whit Olson nor any other representative of Olson gave Adams the price for which it was willing to sell the Barge or the terms upon which it was willing to sell it, or indicated that they were listing the Barge for sale by Adams as its broker.
With the information he obtained, Adams was able to induce Coppedge, in behalf of Florida Towing, to submit an offer to purchase the Barge and three cranes for $125,000.
On or about November 7, 1968, Adams, "on behalf of Florida Towing" made an oral offer to Wyatt to purchase the Barge and the three cranes for $125,000.
That offer was confirmed by a telegram which read:
The terms of the offer were not acceptable to Olson and on November 8, 1968, by telegram addressed to Adams, Olson made a counteroffer, in which it offered to sell the Barge to Florida Towing on the following terms:
On November 11, 1968, Florida Towing sent a letter to Olson, accompanied by its check for $15,000 as a down payment, and indicated the terms proposed were acceptable to it, provided the down payment was reduced to $15,000. Olson accepted and cashed the check, and thereby agreed to the reduction proposed by Florida Towing.
In its complaint, Florida Towing alleged that Olson advised Florida Towing that it had ordered dry-docking of the Barge on the morning of December 23, 1968, for Florida Towing's inspection; that its inspection of the Barge on December 23 and 24, 1968, revealed that it would cost in excess of $100,000 to obtain certification by the American Bureau of Shipping and the Coast Guard; that it had relied on Olson's surveyor's estimate of $28,000, and that Olson had failed and neglected to obtain such certification, and that on December 28, 1968, by telegram to Olson, Florida Towing demanded the return of its $15,000 down payment.
In support of its motion, Olson filed an affidavit by its vice president, John E. Pettebone, in which he averred:
That Olson never had at any time in Florida a place of business, an office, mailing address, telephone service, or other means of communication; that it never had in Florida at any time an employee, agent, representative, broker, salesman or any other person acting in its behalf; that Olson never at any time sold products in Florida, directly or indirectly, or through wholesalers, jobbers or other distributors, and that it never at any time advertised any products or services or solicited any business in Florida from any persons, firms or corporations within that state.
Unless an acceptance is unconditional and without variance from the offer, in legal effect it is not an acceptance, but is a counteroffer.8
Here, Florida Towing's acceptance of Olson's counteroffer was in variance therewith, in that Florida Towing tendered a down payment of $15,000, instead of $25,000 stipulated in Olson's counter-offer.
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