Geoghegan Sons & Co. Inc v. Bros

• Decision Date: 12 June 1924
• Citation: 123 S.E. 387
• Court: Virginia Supreme Court
• Parties: GEOGHEGAN SONS & CO., Inc. v. ARBUCKLE BROS.

123 S.E. 387

GEOGHEGAN SONS & CO., Inc.

v.ARBUCKLE BROS.

Supreme Court of Appeals of Virginia.

June 12, 1924.

Error to Circuit Court, Mecklenburg County.

Action by Arbuckle Bros, against Geoghegan Sons & Co., Inc. Judgment for plaintiff, and defendant brings error. Affirmed.

Irby Turnbull, of Boydton, for plaintiff in error.

McGuire, Riely & Eggleston, of Richmond, Faulkner & Faulkner, of Boydton, and Aubrey R. Bowles, Jr., of Richmond, for defendant in error.

BURKS, J. This was an action by Arbuckle Bros., plaintiffs, against the defendant, to recover the purchase price of 110 bags of sugar sold to the defendant, for which it refused to pay.

In the summer of 1920 sugar was scarce and high, and the difficulty in getting transportation was great So great was this difficulty that the plaintiff would not ship in less than carloads, with a minimum of 60, 000 pounds, and "all of these parties were aware of the practice of shipping sugar to Richmond in car lots." Such were the conditions when the contract in suit was entered into.

The contract was entirely by corresponddence. It was negotiated through F. V. Gunn & Co., brokers, of the city of Richmond. It began by a letter from the bro-kers to the defendants, dated July 24, 1920, saying:

"We remember that you have frequently asked us regarding sugar. We have an opportunity now to sell you sugar and it is the first opportunity we have had since our business acquaintance with you. Mess. Arbuckle Bros. are offering at 21¢ N. Y. for shipment up to August 10th."

On the same date the defendant replied, saying:

"Please ship as per your letter 100 sacks granulated sugar 100s, 10 sacks yellow sugar. This may come through to Richmond in a car lot and we will appreciate it if you will rush this out to us."

The brokers had some difficulty in getting the order accepted. But on August 6, 1920, they wired the defendant, "Entered your hundred bags fine, ten bags eighths twenty one, " and on the same date wrote the defendant confirming their telegram "on a basis of 21¢ New York, " and saying further:

"The sugar will be shipped promptly in a pool car to a wholesale grocer in Richmond, and on arrival we will reship the same to you. Of course, you are to pay us the handling and cartage charges, which will be probably 1¢ per bag for handling, and at the prevailing cartage charge which we think we could get done for 5¢ per hundred or $1.00 for a ton."

On August 10, the 110 bags of sugar for the defendant, 25 barrels for Fleming & Christian, together with 400 bags for the E. W. Gates & Son Company, in all respects similar to the 110 bags, were delivered to the carrier, and consigned to E. W. Gates & Son Company, wholesale grocers, Richmond, Va. Through some unexplained delay on the part of the carrier the car did not reach Richmond until September 17, 1920. On the same date the 110 bags were tagged and reshipped to the defendant at Chase City, Va., and was received there the next day, September 18. An invoice of the 110 bags dated August 10, 1920, was sent by the plaintiffs to the defendant, in which it is stated: "Freight f. o. b. N. Y." It does not appear when the invoice was received by the defendant, but on September 3, 1920, the defendant wrote the plaintiff:

"We have yours of 1st Sept. and beg to advise that your sugar invoice of Aug. 10th has not been overlooked, but check will be sent you upon arrival of sugar or properly signed bill of lading."

In the meantime, on August 25, 1920, the defendant wrote to the brokers, F. V. Gunn & Co., Richmond, complaining of delay in receiving the sugar, and saying:

"This delay has caused us a loss of $3.90 per 100 lbs. or $429.00 on our 110 sacks and it occurs to the writer that the R. R. Co. is or can be held responsible."

On September 14, 1920, defendant wrote to F. V. Gunn & Co., saying:

"We cannot now use this sugar unless we are given the present price on same."

On September 18, 1920, the day the sugar arrived at Chase City, the defendant wrote F. V. Gunn & Co. as follows:

"We are surprised that you have shipped us 110 sacks of sugar which came to Richmond, Va., in a car that has been on the R. R. for more than a month and not inform us as to how we stand on a claim. We are powerless to protect ourselves except to decline accept the sugar as written you several times before— therefore until we are assured of protection this sugar will remain in the depot. We bought this sugar about the first of July for immediate shipment and this is the 18th of September and a most unreasonable time has elapsed since that time.

"On this schedule, we might buy an article now for quick shipment and get it about the year 1925.

"We will await your advice in the matter.

"If the sugar had been shipped direct to us we could have protected ourselves without any assistance from any one else, but as we did not purchase this to be shipped with another and knew nothing of a pool car until some weeks later, we cannot accept the sugar unless we are protected.

"If you so desire we will accept this sugar from the frt. station and store it until adjustment can be made."

In reply to this letter, F. V. Gunn & Co., under date of September 20, 1920, amongst other things, wrote:

"It is unfortunate that you have sustained a loss; however, these things cannot be foreseen. The car was consigned to Mess. E. W. Gates Sons Co., who are, of course, interested if they have a claim against the railroad company, and if they have, they will enter claim in which event your 110 bags will be included."

When the sugar arrived at Chase City on September 18, 1920, it was not taken out of the depot immediately. On September 24, 1920, the defendant wrote the plaintiffs, saying, amongst other things:

"In order to save you any storage charges on the 110 sacks sugar we are going to take it out of the depot to-day and expect you to protect us as we cannot protect ourselves on account of the way you shipped it out from N. Y. in a pool car. * * * If this is not satisfactory we will hold the sugar subject to your instructions."

This action of the defendant in taking the sugar out of the depot to save storage charges was not previously authorized nor subsequently ratified by the plaintiffs. The defendant paid the freight to Richmond, and the charges for cartage and handling there, and also the freight from Richmond to Chase City.

There is now pending an action by E. W. Gates & Son Company against the carrier for damages caused by the delay, in which actionthe claim of the defendant for his losses occasioned by such delay is included.

There was a verdict and judgment for the plaintiff for the full amount of their claim, to wit, $2,305, with interest and costs.

There are four assignments of error to the ruling of the trial court in granting and refusing instructions, and one for refusing to set aside the verdict of the jury as contrary to the law and the evidence, and for misdirection.

Counsel for the plaintiff in error (defendant below) developed practically his whole case in the discussion of his objection to instruction No. 1, given for the plaintiffs, which instruction was as follows:

"The court instructs the jury that the contract covering the sale of sugar involved in this case is embraced in the letters and telegrams shown in evidence that passed between the plaintiffs and the defendant through F. V. Gunn & Co., that said letters and telegrams show that said sale was f. o. b. New York City, and that in said contract the defendant authorized the plaintiffs to ship said sugar through to Richmond in a car lot; and if the jury believe from the evidence that the plaintiffs, within a reasonable time after the order for said sugar was received by them, delivered said sugar to the railroad company in New York City in a car lot with other sugar consigned to E. W. Gates & Son Company, Inc., at Richmond, Va., and at the same time mailed an invoice for said sugar to the defendant, showing shipment in such manner, then the plaintiffs complied with their contract as to the delivery of said sugar, and upon such delivery to said railroad company in New York said sugar became the property of the defendant, and the plaintiffs are not responsible for any delay thereafter occurring while said sugar was in the hands of said railroad company or its connecting lines."

The first objection to the instruction is that the court construed the contract between the parties, whereas, under the circumstances, the construction of the contract should have been left to the jury under proper instructions from the court.

Where a written contract is clear and unambiguous on its face, it is the duty of the court to construe it, whether the contract be contained in a single document or evidenced by several papers. Where the contract is not clear and unambiguous on its face, but is rendered so by extraneous evidence which has been properly admitted, so that nothing remains to be done except to construe the contract in the light of such extraneous evidence, it is equally the duty of the court and not of the jury to construe it. Licking Rolling Mill Co. v. Snyder & Co., 28 Ky. Law Rep. 357, 89 S. W. 249. But where the language of the contract is not clear and unambiguous, and resort to extrinsic evidence is necessary, if the situation is such that fair-minded men might reasonably draw different conclusions therefrom, then the construction of the contract is for the jury un der proper instructions from the court, even though the evidence be not conflicting. Railroad Co. v. Stout, 17 Wall. 657, 664, 21 L. Ed. 745; 23 Am. & Eng. Ency. L. (2d Ed.) 565.

The rule is well stated by Judge Kelly in Rickard v. Rickard, 134 Va. 485, 491, 115 S. E. 369, citing numerous cases, as follows:

"As a general rule it is the duty of the court and not of the jury to construe written instruments. Burk v. Lee, 76 Va. 386, 388. Where, however, the true meaning of the terms of the instrument depends upon parol testimony as to the effect of which they...