Frank Bowman Co. v. Lecato

• Citation: 292 F. 73
• Decision Date: 03 July 1923
• Docket Number: 2100.
• Parties: FRANK BOWMAN CO. v. LECATO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

292 F. 73

FRANK BOWMAN CO. v. LECATO.

No. 2100.

United States Court of Appeals, Fourth Circuit.

July 3, 1923

D Arthur Kelsey and J. Edward Cole, both of Norfolk, Va. (Cole Cole & Cole and Oast, Kelsey & Jett, all of Norfolk, Va., on the brief), for plaintiff in error.

J Brooks Mapp, of Keller, Va., and Thomas H. Willcox, of Norfolk, Va., for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WOODS Circuit Judge.

Frank Bowman Company, a Cuban corporation doing business in Havana Cuba, brought this action against R. U. Lecato, dealer in potatoes, strawberries, and onions at Painter, Va., to recover damages for breach of a contract to sell 15 cars of potatoes. The case turned on whether a complete contract was made by the parties. The plaintiff requested the following instruction:

'The court instructs the jury that cablegrams read in connection with the correspondence between the plaintiff and defendant, which have been offered in evidence in this case, contain a definite offer by the plaintiff and an unconditional acceptance by the defendant, and when completed by the tender of the required deposit resulted in a binding contract which could not be defeated by either party subsequently refusing to sign a formal writing evidencing such contract.'

This was in substance a request to instruct the jury to find for the plaintiff. We are to determine whether the district judge erred in refusing the request and submitting to the jury as an issue made by the evidence whether the parties entered into a binding contract.

Negotiations were opened by the defendant Lecato on February 20, 1920, by letter stating his price for potatoes delivered in June and soliciting business of plaintiff. On March 30th plaintiff replied saying prices given were out of line with other quotations. On April 6th defendant wrote again concerning prices and other matters relating to potato trade and expressed the hope of doing business with plaintiff. Plaintiff wrote again on April 13th saying:

'We now think we would like to take on a few cars and figuring on a freight rate of $2.04 via the Ferry.'

This letter confirmed a cablegram asking for quotations on 'Hoosiers prompt shipment' and on 'Cobblers shipment June and July.' Defendant answered on April 16th by cable:

'Offer fifteen cars shipment July first to fifteenth seven eighty delivered dollar barrel deposit.'

Plaintiff sent by cable this acceptance:

'Accept fifteen cars shipment July first to fifteenth mail contract will remit you three thousand dollars New York exchange soon as receive signed contract.'

Defendant sent a letter of same date confirming his offer by cable. On same day plaintiff wrote:

'This confirms exchange of cables between us, this date, copies attached.

'We understand that we purchased from you, shipments to be made between July 1st and 15th, 1920, fifteen (15) cars potatoes at $7.80 per barrel c.i.f. Havana, each car to contain 200 or more barrels of potatoes. All shipments are to be made via the Ferry.

'If on receipt of this letter you have not already mailed us contract, please do so and as soon as we receive contract in duplicate signed by you, we will send one copy back to you duly signed, and will also remit you New York Exchange for $3,000 to your order.'

There can be no dispute that this correspondence was intended to constitute, and did constitute, a completed contract binding on both parties. The quantity and kind of potatoes, the freight rate, the date of delivery, the price and the deposit as security to the seller were all agreed upon. As no credit was stated, the contract meant cash to the seller on delivery of the goods to the buyer. The signing of a formal contract was contemplated as a memorial of the sale and purchase.

On April 16th defendant wrote a letter in which he said:

'Please find inclosed contract covering fifteen cars potatoes. Please forward me promptly three thousand dollars to apply on contract.'

The paper inclosed was not signed by defendant and was nothing more than a proposed form of contract. It provided that the date of shipment should be subject to weather conditions. It contained also these provisions: 'The purchaser further agrees to accept and pay promptly all sight drafts made by the seller for open shipments of said potatoes, supported by original bill lading.

'It is the understanding of this contract, should there be any advanced charges in freight rate above the present rate, same will be chargeable to the purchaser.'

The provision that defendant should have the privilege of delaying shipment for unfavorable weather was not contemplated by the agreement. The paragraph of the proposed formal writing first quoted as to sight draft and bill of lading was in precise accord with the contract that the price should be paid cash on delivery. The second paragraph quoted was subject to objection in that it did not specify the freight rate which had been mentioned in the correspondence as $2.04.

On receipt of the letter and the form plaintiff wrote, on May 6th:

'Replying to yours of April 21st, we inclose you herewith New York Exchange for three thousand dollars to apply against contract covering purchase as per exchange of cables of April 16th, of fifteen (15) cars (three thousand barrels of potatoes), shipment from Virginia points July 1 to 15, 1920.

'The contract inclosed in your letter of the 21st of April is not a fair contract for either buyer or seller. We have therefore taken the liberty of substituting the contract as used by the Eastern Shore of Virginia Produce Exchange and you will note that although they only call for fifty cents per barrel to be paid on the signing of the contract and fifty cents per barrel to be paid before June 1, 1920, we inclose you three thousand dollars without waiting for June 1st to pay you the $1,500.00 which would be coming to you on that date, as per contract of the Eastern Shore of Virginia Produce Exchange.

'Your contract is weak in the paragraph referring to freight rates. You virtually say in your contract that any variations in the present freight rate is for buyers account, but as you do not specify the freight rate, no basis has been established for a variation and you will note that in the Eastern Shore of Virginia Produce Exchange contract, they fix a freight rate of $2.04 from Virginia points.'

The plaintiff did not sign the form sent by it, giving as a reason that it thought the seller should first sign. The check for $3,000 inclosed was indorsed as follows:

'Earnest money paid R. U. Lecato, of Painter, Va.; against a contract calling for fifteen (15) cars (three thousand barrels potatoes) to be shipped between July 1 and July 15, 1920, at the price of $7.80 per barrel CIF Havana, via Key West, Fla., via Ferry Key West to Havana. Variations in freight rate for buyers account.'

The only specific objection made by plaintiff to the formal contract proposed by defendant, that it did not indicate the freight rate, was well founded, for the correspondence mentioned $2.04 as the contemplated freight rate. Plaintiff's letter of May 6th, so far from being a repudiation of the contract of sale, was an express statement of the purchase and a reaffirmance of it. While criticizing the form proposed by defendant, plaintiff did not express refusal to sign it if defendant insisted on it.

The defendant held the letter and form of contract proposed by plaintiff and the check for $3,000, sent on May 6th, without objection or acknowledgment. On May 25th plaintiff cabled, and on May 26th wrote, asking acknowledgment. On May 28th, after holding the check and form of contract proposed by plaintiff in silence for about three weeks, defendant wrote:

'Replying to your cable of the 26th in regard to contract for 3,000 barrels potatoes. Have been quite busy loading strawberries and really haven't had time to look same over carefully until I received your cable.

'I am sorry to say that I could not...