OPINION
ROSE, J.
This is
a suit by the Fruit Dispatch Company to recover from Bernard
Gilinsky the purchase price of a carload of bananas shipped
from New Orleans to Council Bluffs. The fruit weighed 21,500
pounds, and the price was $ 1.70 a hundred weight. The jury
rendered a verdict in favor of plaintiff for $ 396.95, the
full amount of its claim and interest. From a judgment for
that sum defendant appeals.
The
parties disputed over the terms of their agreement.
Plaintiff's understanding is that the sale was controlled
by the terms of a written contract applicable to all sales to
defendant and containing uniform provisions, one of which
required him to accept the fruit when delivered to the
carrier at the seaboard. Defendant denied the existence of
such a contract, and insisted his only obligation was to
accept the bananas at Council Bluffs, and pay the purchase
price, if they arrived in a green and merchantable condition.
They did not so arrive, according to his estimate of their
condition, but, on the contrary, as he alleges, were ripe and
unmerchantable. He therefore refused to accept the
consignment. Plaintiff disclaimed ownership of the fruit at
Council Bluffs, and it was sold by the carrier to pay the
freight charges. The position of each party is disclosed by
facts fully and formally pleaded. Defendant was a wholesale
fruit dealer at Council Bluffs. Plaintiff was an importer of
tropical fruits, and its method of doing business is
partially described in its brief as follows: "The fruit
was brought by steamships from tropical countries to the port
of New Orleans, where it was immediately loaded
by the Fruit Dispatch Company in cars of the Illinois Central
Railroad and other railroads for shipment north and west. The
fruit being of a character which would perish and become
unsalable, if not handled promptly, the method of marketing
and shipment was to obtain sales throughout the territory in
which the company operated, through its agents, in advance of
the arrival of a shipment. If the entire cargo had been sold
in advance in car-load lots, the cars were immediately billed
to the different purchasers
at the time of leaving New Orleans. As it could not always be
known exactly when a ship-load would arrive, and as the
loaded cars were ready to start from the port of New Orleans
shortly after the arrival of the ship, it would frequently
happen that not all of the car-loads would have been sold
when the shipment was ready to leave New Orleans. In that
case, the cars were started north without a fixed
destination, and for each car a bill of lading in duplicate
was issued, with the consignee and destination left blank
but the custody of these bills of lading was retained by the
agent of the railroad in New Orleans until instructions could
be given. Cars shipped in this manner were said to be
'rolling,' and are so referred to in the testimony.
It was the purpose of the fruit company to find buyers for
these cars before they reached the first diverting point of
the railroad, and, when this was done, the office of the
fruit company in New Orleans was notified by wire, and
thereupon the agent of the railroad was directed to insert
the name of the purchaser as consignee and the place of
destination. Instructions would then go from the
railroad's office in New Orleans to the proper railroad
division to divert the car and deliver it according to such
instructions."
About 5
o'clock on the morning of November 7, 1906, the shipment
in question left New Orleans for the north on the Illinois
Central Railroad, but at that time the bill of lading did not
disclose the destination of the car or the name of the
consignee. Knowing the car was "rolling," as that term has been described, defendant by an oral
order directed R. B. Thompson, plaintiff's agent at
Omaha, to wire plaintiff an offer of $ 1.70 a hundred weight,
November 8, 1906, "if fruit green and in good
condition." The order was immediately accepted by
plaintiff at New Orleans, and notice thereof was at once
communicated to defendant. By direction of plaintiff the name
of defendant as consignee was promptly inserted in the bill
of lading, which had been previously issued, and it was then
mailed to him at Council Bluffs, where he received it
November 12, 1906, the date of the arrival of the car. There
is proof that the bananas should have reached their
destination November 10, and that the delay in transportation
may have been sufficient to ripen the fruit. Plaintiff
insists that the sale was controlled by the following
contract, which appears in the back of a book entitled
"Cipher Code and Uniform Conditions Governing Sales for
Use in Writing Orders to and Receiving Notifications from
Fruit Dispatch Company":
"In
conformity with similar announcements heretofore made, the
Fruit Dispatch Company has established the following uniform
conditions to govern all purchases of bananas and other fruit
from it.
"1.
All bananas and fruit are sold by the Dispatch Company
delivered f. o. b. freight cars at the seaboard, with the
exception of special sales provided for in clause No. 11
hereof. After delivery to the carrier at the seaboard all
bananas and fruit are at the sole risk of the purchaser.
Every order for or sale of bananas or fruit given or made
after the same shall have been shipped at the seaboard, shall
relate back to the time of such shipment and shall have the
same force and effect in every respect as if given or made
prior to such shipment.
"2.
The certificate of the official weigher, respecting the
weight of the bananas or fruit in any given car upon shipment
at the seaboard, shall be final and conclusive upon both
parties.
"3.
Unless the contrary is clearly specified in writing, every order for bananas or fruit given to the Dispatch
Company shall be understood to contain the request that a
messenger be furnished to accompany the bananas or fruit
purchased for the benefit of the purchaser. The Dispatch
Company at all times shall have the option of providing such
messenger or not. Whenever a messenger shall accompany a car
or cars, he will be instructed to look after the interests of
the purchasers, and accordingly will be subject to all
instructions of the purchasers respecting their bananas or
fruit respectively. In the absence of such instructions, the
messenger will conform to the general rules and regulations
established by the Dispatch Company, and to such special
orders as the Dispatch Company may give on behalf of the
purchaser in any case. The receipt, certificate, or statement
of a messenger respecting the amount, quality, and condition
of the fruit which he is to accompany, given in writing and
signed by him at the time of shipment at the seaboard, shall
be conclusive and final as to all matters therein contained
upon both the Dispatch Company and the purchaser.
"4.
Any purchaser may furnish his own messenger to accompany his
bananas or fruit, and every such messenger shall have
authority to accept bananas and fruit for the purchaser, and
all receipts and statements respecting such bananas and
fruit, signed by such messenger, shall be binding upon the
purchaser.
"5.
The Dispatch Company will employ and pay all messengers
furnished by it as aforesaid for account of the respective
purchasers, and hereby guarantees that the charges to the
purchasers for the services of such messengers shall not
exceed one dollar per car to the respective diverting points
established by the Dispatch Company, and beyond such
diverting points shall not exceed five dollars a day and
extra railroad fares, any fraction of a day in excess of
twelve hours being counted a full day. Messengers may be paid
by the Dispatch Company, and such payments shall be
reimbursed by the purchasers upon receipt of
bills rendered
therefor, but the failure of the Dispatch Company to render
any such bills or to collect such payments shall not impair
or affect any of the terms or conditions hereof. It is
further expressly understood and agreed that, without
increasing the cost of messengers to the purchasers above the
amounts hereinbefore stated, the Dispatch Company may, for
the purpose of having suitable messengers ready for service
at all times, pay the messengers greater amounts, or may
employ them upon salary.
"6.
The purchasers shall bear all loss on account of damage or
deterioration of bananas and fruit after shipment at the
seaboard, arising from any cause whatsoever, and without
altering or affecting this provision, the messengers or the
Dispatch Company may place any cars of fruit in any
store-house or shelter, for the purpose of regulating the
temperature or ventilation thereof, or for any other purpose,
and in so doing, the Dispatch Company may assume the custody
of any bananas or fruit, either directly or through
instructions to any messenger, from the carriers temporarily
without any liability to the Dispatch Company for anything
that may happen or be done to the bananas or fruit in
consequence thereof.
"7.
The Dispatch Company agrees properly to investigate every
claim made as hereinafter provided and will make prompt and
fair adjustment thereof, if found meritorious. The purchaser
however, shall in every instance pay to the Dispatch Company
the full amount of invoice without any deduction whatever,
and shall abide by the decision of the Dispatch Company with
respect to any claim, and accept in full satisfaction thereof
any allowance made by the Dispatch Company. No such...
