Frank Hemingway, Inc. v. Southport Mills, Ltd.

Decision Date07 February 1922
Docket Number3742.
Citation279 F. 237
PartiesFRANK HEMINGWAY, Inc., v. SOUTHPORT MILLS, Limited.
CourtU.S. Court of Appeals — Fifth Circuit

Henry P. Dart, Jr., of New Orleans, La., for plaintiff in error.

John D Miller, of New Orleans, La., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

This suit is brought by the plaintiff in error (plaintiff below) to recover damages for the failure of the defendant to deliver 100 tons of acidulated cocoanut soapstock, containing 95 per cent. saponifiable matter, which plaintiff claims defendant had contracted to deliver at 11 cents per pound ex dock New York. The damages claimed are the difference between this price and the market price which is agreed to have been 16 cents per pound.

The defendant was a producer of acidulated cocoanut soapstock in Louisiana. On or about May 29, 1919, through one Laing, a broker of New York City, a negotiation was inaugurated between plaintiff and defendant whereby plaintiff sought to purchase 100 tons of cocoanut oil fatty acid, otherwise known as acidulated cocoanut soapstock, for 11 cents per pound ex dock New York, for June and July shipments at seller's option.

A contract was sent to Laing by plaintiff describing said product as 'cocoanut oil fatty acid (recovered cocoanut oil). ' Laing advised plaintiff that defendant would not sell its product under this description and tendered a contract signed by the defendant with the material described as 'acidulated cocoanut soapstock.' The plaintiff refused to accept this contract and returned it to Laing in its letter of June 3, 1919, introduced by the defendant. The defendant pleaded that this declination was not communicated to it; but no proof of this fact was offered.

On July 12, plaintiff telegraphed to the defendant at New Orleans:

'Is your product described as acidulated cocoanut oil 95 per cent. saponifiable the free fatty acids of cocoanut oil and what is the average percentage of free fatty acid. Please wire reply.'

To which the defendant, on June 13th, answered:

'Answering telegram, we do not make cocoanut or other fatty acids, but we do make acidulated cocoanut soapstock, 95 per cent. saponifiable matter, and presume this what you speak of. We do not sell this on any free fatty acid basis, but same generally runs around 85 per cent.'

The plaintiff replied to this telegram on June 14, by a letter which, while not referring to the contract refused by them, might be construed as giving reasons for their unwillingness to then accept a contract for a product described as 'acidulated cocoanut soapstock.' The defendant, acknowledging the same, said:

'We are in receipt of your letter of the 14th, and in reply will say that our acidulated cocoanut soapstock is simply the refuse after refining the oil, and put into a concentrated form, running about 98 per cent. saponifiable matter. We usually sell, however, on a basis of 95 per cent. There is no cotton seed oil or other mixture in our product. We shall be glad to hear from you from time to time when you are in the market for either cocoanut oil or acidulated cocoanut soapstock.'

Replying to this letter, on June 24, 1919, plaintiff wrote to defendant asking for a sample of its acidulated cocoanut soapstock, stating they wanted it for testing purposes. On July 1st defendant replied, stating they were sending by parcel post the sample of said soapstock 'of which we owe you 100 tons for July shipment. ' There was no negotiation or communication between the parties under which defendant could owe to plaintiff 100 tons of said soapstock for July shipment, except the contract signed by defendant on or about May 29, 1919, and returned to Laing on June 3d.

On July 9, 1919, plaintiff wired the defendant as follows:

'Your letter July first sample received and O.K. ship on our order hundred long tons acidulated cocoanut soapstock 95 per cent. saponifiable eleven cents pound ex dock New York in time to catch steamer sailing from New York twenty-fifth instant. Kindly wire confirmation at once.'

The market price ex dock New York on May 29th and named in the contract then tendered was 11 cents per pound. By July 1st, and thereafter during this transaction, it was 16 cents per pound. A confirmatory reply of July 10th advises that the space on steamer sailing on 19th has been booked and asks marking instructions. On July 17th the defendant wired plaintiff that it had learned from its New York representative that no contract for sale and purchase of this soapstock at 11 cents per pound had ever been made; that the plaintiff had refused to accept the contract tendered.

The plaintiff concedes that it had no contract through the negotiations with Laing, but contends that the subsequent correspondence, especially the letters and telegrams of July 1st, 9th, 10th, 11th, and 14th, constituted an offer of said 100 tons of soapstock by the defendant and its acceptance by plaintiff at 11 cents per pound. The court on the conclusion of the testimony, which included all of said letters, directed a verdict in favor of the defendant, and judgment was entered thereon accordingly.

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2 cases
  • Spero-Nelson v. Brown
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 6, 1949
    ...a jury question was presented. Hutchins v. Akron, Canton & Youngstown R. Co., 6 Cir., 162 F.2d 189, 192; Frank Hemingway, Inc. v. Southport Mills, 5 Cir., 279 F. 237; Universal Products Co. v. Emerson, 6 W.W.Harr. 553, 36 Del. 553, 179 A. 387, 100 A.L.R. The District Judge also properly sub......
  • Zig Zag Spring Co. v. Comfort Spring Corporation, Civ. No. 11578.
    • United States
    • U.S. District Court — District of New Jersey
    • March 9, 1950
    ...v. Frickreid Supply Corp., 5 Cir., 154 F.2d 88; see also Long v. Morris, 3 Cir., 128 F.2d 653, 141 A.L.R. 1041; Frank Hemingway, Inc. v. Southport Mills, 5 Cir., 279 F. 237. The defendant further alleges by way of affirmative defense that the machines were in the possession of the third par......

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