J.M. Robinson, Norton & Co. v. Tuscaloosa Mills

• Decision Date: 03 January 1911
• Docket Number: 2,074.
• Citation: 183 F. 966
• Parties: J. M. ROBINSON, NORTON & CO. v. TUSCALOOSA MILLS.
• Court: U.S. Court of Appeals — Fifth Circuit

183 F. 966

J. M. ROBINSON, NORTON & CO. v. TUSCALOOSA MILLS.

No. 2,074.

United States Court of Appeals, Fifth Circuit.

January 3, 1911

This is an action for breach of a contract of sale, brought by the buyer, J. M. robinson, Norton & Co., a New York corporation against the seller, the Tuscaloosa Mills, an Alabama corporation. There was verdict and judgment for defendant and plaintiff brings error. The first count of the complaint contains an allegation of the contract and the breach 'Plaintiff claims of defendant the sum of, to wit thirty-three hundred and ten and 13/ 100 ($3,310.13) dollars, with interest, for that plaintiff, to wit, on the 27th day of December, 1906, drew a check for the sum of thirty-three hundred and ten and 13/100 ($3,310.13) dollars on the American National Bank of Louisville, Ky., No. 13198, payable to the order of defendant, which said check was collected by defendant; that for and in consideration of said check defendant was to manufacture or deliver goods, wares, and merchandise to the amount of, to wit, the amount of said check, for the account of plaintiff, to be shipped to plaintiff or plaintiff's order as plaintiff should select and order same; that said defendant has failed and refused, and continues to fail and refuse, to manufacture or ship said goods, wares, and merchandise to plaintiff or plaintiff's order, as aforesaid, and has failed and refused, and continues to fail and refuse, to return to plaintiff the money collected on said check, as aforesaid, wherefore plaintiff brings this suit.'

The defense relied on is elaborately stated in the following plea: 'That on, to wit, the 3d day of February, 1906, the defendant was engaged in the business of manufacturing cotton goods, known as outings, at its cotton mill at Cottondale, Ala., and the plaintiff was a mercantile corporation doing a wholesale dry goods business at Louisville, in the state of Kentucky. That on said 3d day of February, 1906, defendant's traveling salesman made with the plaintiff a contract whereby the defendant contracted to sell to the plaintiff a lot, to wit, one hundred (100) cases of cotton goods, known as outings, at its said mill at Cottondale, Ala. That the $3,310.13 paid by the plaintiff to the defendant, as averred in the first count of the complaint, was paid under and in pursuance of the said contract entered into between the plaintiff and the defendant on, to wit, the 3d day of February, 1906, as aforesaid, whereby plaintiff agreed to purchase from the defendant, and the defendant agreed to sell to the plaintiff, the said 100 cases of outings. That, according to the terms of said contract, defendant was to ship to plaintiff from its said mill at Cottondale twenty-six (26) cases of said goods in the month of July, 1906, and to hold the balance of said goods for instructions from the plaintiff up to the 1st day of December, 1906, and to deliver to plaintiff on December 1, 1906, all of the said goods not delivered prior to that time, at which time the plaintiff should take and pay for such balance of goods as had not been delivered up to that time. And the defendant avers: That, in pursuance of the terms of said contract, it shipped to the plaintiff on orders from it, in and prior to the month of July, 1906, 26 cases of said goods, and at various other times prior to the 1st day of December, 1906, shipped to the plaintiff, or to such of the plaintiff's customers as the plaintiff designated to the defendant, various different quantities of said goods, amounting in the whole to fifty-three (53) cases, for all of which the plaintiff paid the defendant according to said contract. That on the 1st day of December, 1906, there remained of the one hundred cases of goods covered by said contract twenty-one (21) cases which had not been delivered. That the defendant on, to wit, the 15th day of December, 1906, separated from its other goods, and laid aside by themselves separate and apart from any other goods in defendant's warehouse at Cottondale, in Tuscaloosa county, Ala., where said goods were manufactured, and at the point from which they were to be shipped, the 21 cases of goods remaining undelivered on said contract of February 3, 1906, of exactly the same kind, quality, and description called for by said contract and then undelivered, and appropriated them to the supplying and completion of the goods then due plaintiff under said contract, and made out and rendered to plaintiff an invoice or bill of said goods, and wrote plaintiff a letter inclosing said invoice or bill, informing plaintiff that said goods were held in defendant's warehouse subject to plaintiff's order. That upon receipt of said invoice and letter from defendant plaintiff, in reply thereto, sent defendant a check for the $3,310.13 mentioned in the several counts of the complaint in payment for said goods, and the defendant avers that from the time said goods were laid aside and set apart as aforesaid they remained in the defendant's warehouse at its mill in Cottondale, in a pile by themselves, separate and apart from any other property belonging to defendant or any one else, until, to wit, the 13th day of August, 1907, when, without fault on the part of the defendant, said goods were destroyed by fire. ' There were several other counts in the complaint, and numerous pleas, but, in view of the facts developed on the trial and the questions to be considered here, they are not material.

The plaintiff offered in evidence the order for goods, which, with its acceptance, constituted the contract. The order was dated February 3, 1906, and was for '100 cases of Caledonian outings,' describing the assortments, and directing the defendant to ship part of the goods in July and to 'hold balance for instructions.' The order authorized the seller to charge to the buyer 'such goods required to complete order December 1st. ' The order clearly meant, as construed by both parties, that after making the July shipment the other cases were to be shipped as ordered, and that, if directions for the shipment of all the goods were not given by the buyer before December 1st, the cases not ordered out could be charged by the seller to the buyer. The plaintiff offered evidence to show that he had not directed the shipment of, nor actually received, 21 cases of the goods embraced in the contract. Seventy-nine cases had been received or shipped on the buyer's order, and paid for. The controversy is confined to the 21 cases. The plaintiff's evidence showed that it had received a bill for the undelivered 21 cases, and that a check for $3,310.13 had been sent to the sellers to pay for them. This check, payable to and indorsed by the Tuscaloosa Mills, was offered in evidence, together with some letters that will be referred to later. The plaintiff then rested.

The defendant's evidence did not conflict with that offered by the plaintiff as to the original contract and its part performance. The defendant, however, offered testimony to show that the 21 cases of goods were manufactured, marked, and set aside for the plaintiff separate from defendant's other goods on December 15, 1906, that notice was given plaintiff that they were held subject to its order, and that the goods, without fault of the defendant, were destroyed by fire on the 13th day of August, 1907. The defendant's evidence tended to show that the invoice sent plaintiff was indorsed that the goods were held subject to plaintiff's order, and that a letter accompanied the invoice to the same effect. The receipt of the letter and the invoice so indorsed was denied by the plaintiff, but it was admitted that the bill for the 21 cases was received, and that the check was sent to pay the bill. The contract and the evidence show that the goods had to be paid for within the year 1906 to obtain a discount of 3 per centum, which was, in fact, allowed. The correspondence between the parties to which we have referred is as follows:

On July 23, 1907, plaintiff wrote to the defendant: 'We will appreciate it very much if you will send us sample cards of outing flannels. You know you have charged up to us about twenty cases of these goods, and we want to give you selections for the same. ' On July 24, 1907, defendant replied: 'We have been waiting to hear from you in regard to the goods we have charged up to you. We think it would be best for both of us if you would send direct orders for goods to be shipped to your customers. We can give you nice assortments and know they will please you. This will enable us to give you more prompt deliveries. ' On August 8 1907, plaintiff wrote to the defendant: 'It was our pleasure a few days ago to receive a letter from you in answer to ours as regards samples of outing flannels you were going to send us to select from. Our fall trade is on us and we are needing these outing flannels, so we will appreciate it if you will send us these samples at...