Gillette v. Kelling Nut Co.

• Decision Date: 08 November 1950
• Docket Number: No. 6159.,6159.
• Citation: 185 F.2d 294
• Parties: GILLETTE et al. v. KELLING NUT CO.
• Court: U.S. Court of Appeals — Fourth Circuit

185 F.2d 294 (1950)

GILLETTE et al. v. KELLING NUT CO.

No. 6159.

United States Court of Appeals, Fourth Circuit.

Argued October 17, 1950.

Decided November 8, 1950.

L. S. Parsons, Norfolk, Va. (Venable Parson, Kyle & Parsons, Norfolk, Va., and Thomas L. Woodward, Suffolk, Va., on the brief), for appellants.

Edward F. Howrey, Washington, D. C., and William C. Worthington, Norfolk, Va. (Sanders, Gravelle, Whitlock & Howrey, Washington, D. C., and James G. Martin & Son, Norfolk, Va., on the brief), for appellee.

Before PARKER, Chief judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

A civil action was brought by Edward F. Gillette (hereinafter referred to as Gillette) and Mabel Gillette, trading as Peanuts Growers Milling Company, against The Kelling Nut Company (hereinafter referred to as Kelling) in a Virginia State Court and was removed by Kelling to the United States District Court for the Eastern District of Virginia. This action was brought to recover damages in the sum of $4,500.00 said to have been occasioned by an alleged breach of warranty, given by Kelling to Gillette upon the sale of certain peanuts.

After the taking of Gillette's deposition and the filing of exhibits, both parties moved for summary judgment and these motions were orally argued. The District Court granted the motion of defendant-appellee and denied the motion of plaintiff-appellant. In entering judgment for Kelling, the District Judge stated: "* * * the peanuts were sold to plaintiffs (appellants) and purchased by them subject to the approval of a new inspection which was made by the Federal-State Inspector on September 7 and 8, 1948, and defendant (appellee) made no representations upon which plaintiffs relied * * * and that there is no genuine issue as to any material fact." Plaintiffs have duly appealed to us.

The only questions that we need consider are: (1) Was there a warranty by Kelling upon which Gillette relied; and (2) Was there any genuine issue as to any material facts, which would preclude the summary judgment in favor of Kelling. Since we think the District Judge correctly answered both these questions in the negative, the judgment below must be affirmed.

On August 24, 1948, Gillette wrote to Johnson, Vice-President of Kelling, a letter which read in part: "I have a customer who is in need of some medium peanuts. * * * If you have any mediums or Extra large that you will sell me, please state quantity and quote your best price and state whether or not the price quoted carries 1% brokerage for me. If the peanuts offered are not U. S. grade, please show how much they are off."

Johnson's letter to Gillette, dated August 26, 1948, contained these two paragraphs:

"Sorry, we have no Mediums at all in excess of what we will need, but we can spare a car or two of Extra Large if we can get our price of 21¢ F.O.B. Suffolk cold storage. At this price we would be willing to pay the usual brokerage of 1%.

All of the peanuts in cold storage have undergone federal inspection and are U. S. grade even to count. It is true that Virginia Peanuts this past year were affected by too much moisture so that some of them might show a slight bleaching. We find that cars that went into cold storage with 8% and 9% moisture are now coming out and show in most cases 6% or less."

On September 4, 1948, Gillette wrote to Johnson: "These two cars of Extra Large Peanuts that we have been writing and talking about have been sold, subject to the approval of the buyer of a new inspection." (Italics ours.)

Johnson immediately accepted these terms as the basis for the contract of sale and notified the American Cold Storage Company of Suffolk, Virginia, where the peanuts were held in storage, to permit Gillette to inspect the peanuts. J. P. Thomas, Federal-State Inspector, inspected the peanuts and duly executed two inspection certificates. One certificate concluded with the words: "Grade: Stock fails to grade U. S. Extra Large Virginia Shelled Peanuts account of percentage of Unshelled or damaged in excess of tolerance."

The second certificate contained the statement: "Grade: Stock fails to grade U. S. Extra Large Virginia Shelled Peanuts account of percentage of Foreign material in excess of tolerance."

The Planters Nut and Chocolate Company (hereinafter called Planters), Gillette's customer, also inspected the peanuts and made certain laboratory tests on samples of the peanuts. Thereupon Planters agreed to accept the peanuts and Kelling was so notified. Gillette paid the purchase price to Kelling. Upon the delivery of some of the peanuts to Planters, Planters rejected them. Gillette then took the peanuts back and demanded that Kelling refund the purchase price. When Kelling refused to do this, Gillette disposed of the peanuts and instituted this civil action against Kelling.

Gillette's case here is based on the legal theory of a sale by description of Extra Large Peanuts, with a warranty by Kelling that the peanuts were Extra Large peanuts, upon which Gillette relied, and that this warranty was breached by Kelling to the consequent damage to Gillette. We think the District Court correctly gave summary judgment against Gillette, on this theory, upon the facts clearly before us.

Had Kelling here, in response to Gillette's letter agreed to sell Gillette Extra Large peanuts and then had Kelling delivered to Gillette peanuts which did not answer this description, Gillette would unquestionably have had a case against Kelling. But Kelling's first letter (August 26, 1948) stated that it had on hand one or two cars of peanuts which federal inspectors had graded as U. S. grade, but that these particular peanuts had been in storage for some time and had probably suffered from bleaching and moisture. And Gillette had informed Kelling in Gillette's letter (August 24, 1948) that Gillette was buying the peanuts for the purpose of selling them to a customer.

Then came Gillette's letter to Kelling (September 4, 1948): "These two cars of Extra Large Peanuts that we have been writing and talking about have been sold, subject to the approval of the buyer of a new inspection." This indicates quite clearly that neither Gillette nor Planters was interested in a mere sale by description, but that, on the contrary, Gillette wished to buy from Kelling, and Planters to buy from Gillette, two specific cars of peanuts, as to which Planters were to have a new inspection and an approval by Planters in the light of this inspection. Planters, in the light of the new inspection and the inspector's new certificates that the peanuts did not grade "U. S. Extra Large," and after Planters had made laboratory tests of samples from these particular peanuts, nevertheless agreed to accept them. And, on the strength of all this, the peanuts were delivered by Kelling, which received the purchase price from Gillette.

That Gillette bought the peanuts from Kelling, relying on the inspection and the approval of Planters and not on any warranty of Kelling, is further shown by two letters written by Gillette to Planters. Thus, in the letter of September 9, 1948, Gillette stated: "This will confirm, as of yesterday, when you approved the results of the Federal State grading and your inspection of samples taken by you two cars of Extra Large Va. Peanuts at 21-¼¢. As agreed, you will take delivery of these peanuts at the American Cold Storage, this City, on Monday, September 13th. You may call for them any time to suit your convenience and that of the American Cold Storage, after 10 A.M."

Again, in the...