Joring v. Harriss

• Decision Date: 27 June 1923
• Docket Number: 219.
• Citation: 292 F. 974
• Parties: JORING et al. v. HARRISS et al.
• Court: U.S. Court of Appeals — Second Circuit

292 F. 974

JORING et al. v. HARRISS et al.

No. 219.

United States Court of Appeals, Second Circuit.

June 27, 1923

Plaintiffs reside in Holland, but were in the United States in early 1917.

Under date of 19th February in that year, Frierson Bros., of Houston, Tex., addressed to them a letter of which the material parts are as follows:

'We herewith beg to confirm sale to you of ten thousand bales of American Cotton as follows:

'Terms Free of charges in warehouse, Barcelona.

'Shipment: March/April from any American port to Barcelona.

'Fixation: Price to be fixed at your call, based upon the actual price at which we cover our May hedges. Price to be fixed not later than May 1st, 1917.

'Weight: Invoice weight to be the inbound weights as ascertained at Barcelona warehouse, less 6 per cent. These weights to be final.

'Carrying charges: There is to be added to the invoice, carrying charges at the rate of sixteen American points per month, or fraction thereof, from the day the cotton is warehoused at Barcelona, until peace is officially announced. All carrying charges after that date, including interest, warehouse charges, insurance, etc., to be for your account.

'Reimbursement: Cash dollars New York, to be paid against invoices and Barcelona warehouse receipts, as soon as peace has been officially concluded, and the seas are reopened for the unrestricted shipment of cotton.

'This letter is written in duplicate, and your acceptance written on the bottom hereof will constitute a complete confirmation of this contract.'

Plaintiffs did not signify acceptance as above indicated until they had made an agreement with defendants, which is as follows:

'Memorandum of agreement between Joring & Bekker, native citizens of Rotterdam, Holland, parties of the first part, and Harriss, Irby & Vose, of Oklahoma City, Oklahoma, parties of the second part.

'The parties of the first part have sold to one of their clients 10,000 bales of cotton at 1,300 points on New York May contract, price to be fixed not later than May 1st, 1917; the terms being C.I.F. & 6% Barcelona, payment cash dollars New York against Barcelona Warehouse receipts, immediately after peace has been declared; the buyers to pay 16 points per month, or fraction thereof, as carrying charges, between May 1st, 1917, and date of delivery of warehouse receipts.

'However, the parties of the first part are to allow a subagent one-third of the difference between 1,000 points on May and 1,300 points on May; said subagent's commission being therefore 100 points and making parties of the first part's net sale price actually 1,200 points on May C.I.F. & 6% Barcelona.

'The parties of the second part are to arrange with the firm of Frierson Brothers to ship the 10,000 bales of cotton to Barcelona, and to carry same in their name until final delivery after peace has been arranged.

'Frierson Bros. are to take up 5,000 bales of March contracts New Orleans, and ship same from New Orleans to Barcelona, and are to take up 5,000 bales of March contracts in New York, and ship same via Savannah to Barcelona.

'Frierson Bros. are to be reimbursed for the cost of said cotton, all freight, handling charges, and insurance thereon, together with all interest and also all differences and commissions in the liquidation of March and May hedges; also for all handling charges at Barcelona, together with warehousing fees, insurances, interests, banking commissions, and all expenses of any nature whatsoever in connection with the purchase, shipment, carrying and financing of said cotton, and in addition thereto Frierson Bros. are to be paid, over and above the said charges, the net sum of $20,000.00.

'The parties of the second part shall eventually render to the parties of the first part a complete and itemized statement of the said reimbursements to Frierson, including the said $20,000.00, which sums shall be charged to the debit side of said statement.

'There is further to be paid to Mr. H. B. Willis, all of the traveling expenses of himself and his wife from Savannah to Barcelona and return, together with their expenses while in Spain, and further a salary of $208.33 per month, from the time Mr. Willis leaves Savannah until he returns to Savannah. There is also to be paid to Mr. Willis the further sum of $7,500.00 for his services.

'All of the above mentioned sums which are paid to Mr. Willis are also to be charged on the debit side of said statement.

'There is to be paid to the parties of the first part the sum of $20,000.00, which sum is likewise to be charged on the debit side of said statement.

'There shall be entered on the credit side of said statement the net proceeds received from the sale of said cotton based on 1,200 points on the final fixation price.

'There shall also be entered on the credit side of said statement the carrying charges collected from the buyers for the period intervening between May 1st, 1917, and the date of eventual delivery.

'There shall further be entered on this statement, on the debit or credit side, as the case may be, any losses or profits accruing through the transferring of exchanges from dollars to pesetas, or vice versa.

'The difference between the total of the debit side and the total of the credit side of said statement shall be divided equally between the parties of the first part and the parties of the second part, the parties of the first part retaining their half and paying to the parties of the second part the remaining half.

'Witness our hands at Oklahoma City, Oklahoma, this 28th day of February A.D. 1917.

'Joring & Bekker, Parties of the First Part.

'Harriss, Irby & Vose, Parties of the Second Part.'

Having made the foregoing agreement, plaintiffs on February 28th wrote at the bottom of Frierson's letter 'Accepted. Joring & Bekker.'

The cotton was purchased by or for account of Frierson and shipped to Barcelona. It was in that city at or very soon after the declaration of war by the United States against Germany on April 6, 1917. On or about 30th June, 1917, Frierson cabled to plaintiffs in Rotterdam that 'conditions necessitate immediate resale of cotton and cancellation of contract,' etc. Plaintiffs at once objected, demanding to know what made 'sale compulsory and at what price' resale could be made. Further cable messages were exchanged between Frierson and plaintiffs, ending in Frierson asking whether plaintiff's position was correctly understood as requiring 'fresh instructions (from plaintiffs) in case conditions stated necessitate cancellation. ' Plaintiffs agreed that this was their position, on September 13, 1917. Meanwhile the cotton remained in storage at Barcelona.

On October 6, 1917 the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 1/2a-3115 1/2j) became effective.

On October 30, 1917, defendants and Frierson Bros. made an application to the 'War Trade Board' setting forth the substance of the foregoing, and asked leave, license, or permission to carry out the transaction which they thus outlined in said written application:

'Joring & Bekker came to the United States in February, 1917, with an order from Austrian spinners for 10,000 bales of botton. They contracted with Frierson Bros. who represented Harriss, Irby & Vose in the transaction (see contract) for the purchase of this cotton; shipment March and April, 1917; C.I.F. Barcelona, Spain, delivery and payment to be made as soon as peace had been officially concluded. Joring & Bekker also made a separate agreement directly with Harriss, Irby & Vose (see contract). The cotton is now in Barcelona, Spain, at our expense, the title remaining in Frierson Bros., the beneficial interest being in Harriss, Irby & Vose, no money having been advanced by buyers.'

(The first contract above alluded to is Frierson's letter, supra, and the second is the agreement between plaintiffs and defendants.)

On November 12th the War Trade Board refused the application in writing, evidently confirming a prior oral refusal, as on November 10th defendants by cable advised the American Consul at Barcelona that the War Trade Board had agreed to permit sale 'only to buyers approved by' the Consul, to whom the telegram was sent. Such a sale was subsequently made to Spanish merchants, and the transaction when liquidated showed a very considerable profit.

Of the transactions beginning at the close of October, 1917, and ending in the sale of the cotton, plaintiffs had no notice; they learned of it in the March following, and through Frierson. Plaintiffs always expressed dissatisfaction with what had been done, and after many protests, of a form thought immaterial, brought this action to recover, as the complaint puts it, 'their share of said profits,' i.e. the profits received by defendants as and when ascertained.

The case coming on to be tried and the testimony having been closed, both sides moved for the direction of a verdict. The court directed verdict and judgment in favor of defendants, and plaintiffs took this writ.

Blandy, Mooney & Shipman, of New York City (Edmund L. Mooney, Terence Farley, Charles T. B. Rowe, Edgar A. Martin, and Frederick A. Card, all of New York City, of counsel), for plaintiffs in error.

Rounds, Schurman & Dwight, of New York City (Martin W. Littleton and Charles E. Hughes, Jr., both of New York City, and Otis B. Kent, of Washington, D.C., of counsel), for defendants in error.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

We shall not dwell on the pleadings, though argument has been based thereon, but prefer to meet the larger question;-- whether on the facts shown plaintiffs have any right, in any form of action, to...