Hartley v. Lapidus & Holub Co.

• Decision Date: 03 August 1914
• Docket Number: 3935.
• Citation: 216 F. 92
• Parties: HARTLEY v. LAPIDUS & HOLUB CO.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 92

HARTLEY v. LAPIDUS & HOLUB CO.

No. 3935.

United States Court of Appeals, Eighth Circuit.

August 3, 1914

Harold J. Wilson, of Burlington, Iowa (W. E. Blake, of Burlington Iowa, J. C. McCoid, of Mt. Pleasant, Iowa, and George B Stewart, of Fort Madison, Iowa, on the brief), for plaintiff in error.

John E Bishop, of St. Louis, Mo. (Samuel F. Knox, of Chicago, Ill and Thomas H. Cobbs, of St. Louis, Mo., on the brief), for defendant in error.

Before HOOK, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

The plaintiff in his petition filed October 25, 1909, says that the parties to this suit entered into a written contract as follows:

'Chicago, Aug. 24th, 09.

'Memoranda of agreement made this day between L. M. Hartley of Salem, Iowa, party of the first part and the Lapidus & Holub Co., 141 So. Water St. Chicago, Ill., party of the second part.

'Party of the first part agrees to sell to party of the second part his entire crop of apples now growing on his farm about four and one half (4 1/2) miles south of Salem, Iowa consisting of orchard of about one hundred ten acres (110) for one dollar and fifty cents ($1.50) per barrel and to carefully pick said apples put in piles or on packing tables as party of the second part may direct, haul empty barrels from Houghton station and load filled barrels on cars at station or in storage at station or in cars on track near orchard.

'Party of second part agrees to furnish empty barrels as fast as needed, pack said apples as fast as picked if possible, measure up all apples picked from trees, no dropped apples to be included, and pay party of first part one dollar and fifty cents ($1.50) per barrel for same. Party of second part shall pay five hundred dollars ($500.00) this day which shall apply on last payment of apples and pay for each car before leaving the shipping station. Barrels to be standard size holding about 3 bushels.

'We further agree that Shackelford varieties of apples are not to be picked before Sept. 15th, 1909 and winter varieties not earlier than September 25th, 1909 but as soon after these dates as party of the first part may direct.

'Party of first part has privilege of reserving apples for his own use.

'(Signed) L. M. Hartley, 'Lapidus & Holub Co.'

That about 7,000 bushels of apples have been delivered under said contract and the defendant is indebted to the plaintiff in the sum of $507 on apples already shipped; that there are about 14,000 bushels of apples remaining on the trees frozen on the night of October 11th, and defendant has notified plaintiff's men not to pick any more apples, and that they would not accept any more apples under such contract, and that plaintiff has been damaged in the sum of $7,000 by defendant refusing to take the apples as agreed. In its answer, filed March 19, 1912, the defendant denies all the allegations of the petition, except the making of the written contract, and alleges that according to the terms of said contract plaintiff was to have the sole charge, control, and direction of picking said apples; that the failure to pick and deliver said apples in time to save them from injury and damage by frost was due solely to the negligence and delay on the part of the plaintiff; that by reason of said apples being frosted and frozen they were rendered worthless and of no value to the defendant; and that plaintiff by his contract had impliedly warranted to pick and deliver to the defendant good merchantable apples. In the amendment to the answer filed before the trial commenced the defendant says that it denies that the contract operated to vest title in defendant to the apples then growing on plaintiff's farm, or that it passed the title of said apples to the defendant, but avers that said contract was but an agreement to sell, and left the title in the plaintiff until they were picked from the trees by him and delivered to the defendant, as required by the terms of said contract, and the title thereto only vested in the defendant as fast as the same were picked and delivered by plaintiff, but that before the balance of said apples had been picked and delivered by plaintiff, and while the ownership and title still remained in him, they froze upon the trees, and so became unmarketable and worthless and in fact were never picked and delivered. After the trial to a jury had commenced, and after the trial court had practically ruled against the plaintiff on all the matters involved in this case, the plaintiff, without leave of court, filed a reply as follows:

'Plaintiff denies that by said contract he was to deliver to defendants good merchantable apples, or that this was so implied, but states the facts to be as follows:

'That in negotiating for the purchase of said apples the defendants stated that they desired to buy such of the apples as would be good merchantable apples, and plaintiff refused to sell said apples in that way; that defendant offered plaintiff 75 cents per bushel for the good merchantable apples in said orchard, but plaintiff refused to sell said apples that way and told them that he would take the less sum of 50 cents per bushel for said apples, they taking all the apples on the trees, which was agreed to, and the contract in question was prepared by defendants pursuant to said oral agreement and as embodying the same. That the defendants agreed when negotiating the deal, saw and inspected the apples before the contract was entered into. That by reason of said facts the defendant cannot now be heard to say that this is an implied warranty that the apples would be sound, merchantable apples, and is estopped from so asserting.

'Plaintiff admits that on the night of October 11, 1909, there came a hard freeze, which froze the greater part of the apples remaining upon the trees on that date, but denies that the title to said apples had not passed to defendants, and alleges the facts relating thereto to be as follows: That such typewritten contract was reduced to writing by defendants in Chicago in duplicate and sent to plaintiff to sign in duplicate, with directions to return one copy to defendant, which plaintiff did not do on receiving same. That several days after he had received said contract from defendants, defendants called him up by telephone from Chicago and asked him why he had not signed the contracts, and plaintiff replied that it fixed the date of picking so late that the apples might freeze before they were picked, and he was not certain where loss would be, and that thereupon the defendant replied that after plaintiff signed the contract the apples were theirs and the late date of picking and freezing would not affect plaintiff or be any loss to him. The defendants having placed this construction upon the contract in question, it cannot now be said that the title to said apples had not passed to them at the time of said freeze, and are estopped from so asserting.

'And plaintiff further states that at the time of said freeze he had a large number of men hired to pick apples, hired at large expense, and that the getting of said men together was attended with large expense. That on the morning following the freeze defendant told plaintiff and his men in charge of picking to stop picking for the present and to hold their men there, which the plaintiff did under protest. That during the day following the freeze defendant told plaintiff and his agents in charge of picking to let the apples remain on the trees a few days, and then they would be all right. That the plaintiff, relying upon defendant's statement and directions, held his men for several days at a large expense so as to be ready to pick said apples as directed

by defendant, all of which was at the time known to the defendant, knowing that if plaintiff let the pickers go and separate that it would take time and expense to get pickers together again.

That defendant directed plaintiff to go among the trees in orchard and pick the apples from the trees which were not frozen, which the plaintiff did at defendant's direction, picking about one-fourth of the apples on some 100 or 150 trees, which were barreled and shipped and are included in the 2,285 barrels mentioned in pleadings of defendants. That the picking of said apples in that way was accompanied with much more expense to plaintiff than picking all the apples from the trees. That on the 20th day of October, 1909, the defendant notified plaintiff that they would not receive the remainder of the apples and not to pick them. That prior to said notification the defendants had treated said apples as their own, and had given plaintiff directions to let them stand on trees and they would be all right in a few days, and had ordered plaintiff to hold his men in readiness to pick same at great expense and directed the picking of some of the apples from some trees, and balance of apples in question were left, and defendants, therefore, by reason of such facts and statements over telephone before signing of contract, are estopped from denying that title to the apples passed to them under the contract in question, and have waived any and all conditions precedent to the passing of title that may be in said contract. That the foregoing facts and acts on part of defendant amount to a construction of said contract by them, and they are now bound thereby.

'Plaintiff further alleges that the defendant filed in this court a construction based upon said contract and based upon the title to said apples having passed to defendant, and that the same amounted to an election upon part of defendant to treat said contract as passing title and an election of their rights, and they cannot now assert a different or inconsistent right. That by reason of all the foregoing facts...