GL Webster Co. v. Trinidad Bean & Elevator Co.

• Decision Date: 27 September 1937
• Docket Number: No. 4177.,4177.
• Citation: 92 F.2d 177
• Parties: G. L. WEBSTER CO., Inc., v. TRINIDAD BEAN & ELEVATOR CO.
• Court: U.S. Court of Appeals — Fourth Circuit

92 F.2d 177 (1937)

G. L. WEBSTER CO., Inc., v. TRINIDAD BEAN & ELEVATOR CO.

No. 4177.

Circuit Court of Appeals, Fourth Circuit.

September 27, 1937.

William G. Maupin and James E. Heath, both of Norfolk, Va. (Otto Lowe, of Cape Charles, Va., on the brief), for appellant.

James G. Martin, of Norfolk, Va., for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.

NORTHCOTT, Circuit Judge.

This is an action at law instituted by the appellee, the Trinidad Bean & Elevator Company, a corporation chartered under the laws of the State of Colorado, here referred to as the plaintiff, in the District Court of the United States for the Eastern District of Virginia at Norfolk, in October, 1935, against the appellant, G. L. Webster Company, a Virginia corporation, here referred to as the defendant. A trial was had before a jury in October, 1936, and a verdict returned for the plaintiff in the sum of $3,762.79, with interest from April 1, 1935. A motion was made on behalf of the defendant to set aside the verdict which motion, after being argued, was overruled, and on December 21, 1936, an order was entered giving judgment for the plaintiff in the sum of $3,762.79, with interest thereon from the 29th day of October, 1936, together with the costs. From this action this appeal was brought.

The controversy grew out of a sale, by the plaintiff, doing business in California, to the defendant, of three thousand bushels of baby lima beans, after an exchange of telegrams, in September 1934. Following the agreement reached by means of these telegrams, the plaintiff forwarded the defendant a written contract with regard to the sale which was not returned, the president of the defendant claiming that it was mislaid. On October 10, 1934, the plaintiff forwarded the defendant another written contract stating that it was a duplicate of the one first sent which latter contract was signed by the president of the defendant company and returned to the plaintiff. This contract contained, among other provisions, two which were not incorporated in the first contract sent. One of these provisions was to the effect that the seller gave no warranty, express or implied, as to description, quality, or productiveness and the other to the effect that the buyer agreed to reimburse the seller for any taxes that might be imposed with respect to the sale.

The written contract provided that the beans in question should be sold subject to delivery f. o. b. dock, at a Pacific Coast port, their carriage to be by water and that the buyer should have the right of inspection at the point of shipment. In the absence of such inspection by the buyer seller had the right to have the goods inspected, on dock before loading, by an inspector of the Chamber of Commerce of San Francisco or of the Los Angeles Grain Exchange, a quality certificate issued by either of said inspectors to be final and conclusive as to grade, quality, and condition of the beans at the time of shipment. The destination of the shipment was given as Norfolk and it was provided that diversion of the shipment would signify acceptance.

The beans were delivered, some at the San Francisco dock and some at the Los Angeles dock, and duly inspected by an inspector at each point and a certificate was given to the effect that the beans were up to the standard in grade, quality, and condition.

On the arrival of the shipment at Norfolk, Virginia, the agents of the defendant procured the unloading of the beans and their reshipment by the Pennsylvania Railroad Company to Cheriton, Virginia, the defendant's place of business. This was done without the knowledge or consent of the plaintiff and without notice. After the goods arrived at Cheriton they were inspected by a deputy...