J. L. Metz Furniture Co., Inc. v. Thane Lumber Co.
| Decision Date | 07 April 1924 |
| Docket Number | 6393. |
| Citation | 298 F. 91 |
| Parties | J. L. METZ FURNITURE CO., Inc., v. THANE LUMBER CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Allen Hughes, of Memphis, Tenn. (FitzHugh & Dixon and Hughes & Hughes, all of Memphis, Tenn., on the brief), for plaintiff in error.
J. W House, Jr., of Little Rock, Ark., for defendant in error.
Before LEWIS, Circuit Judge, and SYMES and PHILLIPS, District Judges.
The plaintiff in error, the J. L. Metz Furniture Company plaintiff below, sued the Thane Lumber Company, defendant here and below, for a breach of four contracts for the sale of lumber. The only contracts necessary to discuss here are those of October 31 and November 1, 1919. The plaintiff alleged breach of both, in that the defendant refused to deliver the lumber, or any part of it, at the time specified and claims damages. The answer admits that plaintiff gave the defendant orders for the lumber referred to, but alleges they were never accepted.
At the conclusion of the testimony the lower court charged the jury, as to these two contracts, that, irrespective of whether there was a breach or not, there was no evidence of any damages, and therefore as a matter of law there could be no recovery.
The defendant in its brief discusses only the question of damages. It may be that by reason of the position taken by the court it did not develop the defense that there were no contracts entered into as fully as it might have done otherwise. But we feel safe in saying that the contracts of October 31st and November 1st were duly entered into and became binding on both parties. Johnson was clearly acting within the apparent scope of his authority in signing what is called the 'acknowledgment of order' given the plaintiff on the dates stated, which were the same forms used for the two other contracts that he made as sales manager for defendant with the plaintiff, under date of March 8 and 14, 1919, respectively. If his authority was limited, the plaintiff had no notice of it. Further, defendant never repudiated his authority until February 26, and left it to the same Johnson to write the letter of November 10, 1919, in which they asked plaintiff to withdraw the orders for other reasons.
It is next in order to consider the effect of the letter from defendant to plaintiff, dated November 10th. The court held this to be a repudiation of the contracts in question, and fixed that as the...
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