DAWKINS, District Judge.
Plaintiff, a copartnership whose members are residents and citizens of states other than Florida, brought this suit to recover of defendant, a citizen of the latter state, the sum of $35,000 as damages alleged to have been suffered by the breach of a contract to accept delivery of some 533 barrels of fine granulated sugar, being the remainder of a total of 600 barrels sold under three separate contracts. The contracts all bear the same date, and were for 200, 300 and 100 barrels, respectively, and, as their terms are otherwise identical, we quote the first, as follows:
"New York, N. Y., April 30, 1920.
"Sold by Lamborn & Company, New York, for the account of whom it may concern. Sold to United Produce Co., Jacksonville, Fla., 200 barrels standard fine granulated sugar, on the basis of 25.50 cents per pound, f. o. b. Savannah refinery, Port Wentworth, Ga., for fine granulated. Shipments to be made some time during the period between July 15 and October 1, 1920, but shipping is to be at sellers' option, subject to delay, if any.
"Terms: Cash before delivery, less 2 per cent., or cash in seven days, less 2 per cent. Terms and withdrawals subject to the approval of the sellers' credit department. Sellers to furnish sugars packed in barrels or bags, but sellers have option of shipping no more than 50 per cent. of contract in 100 pound bags, Sellers will furnish 2, 5, 10, and 25 pound bags at the ruling differential above fine granulated basis, if desired by the trade, provided these packages are obtainable, but do not guarantee to furnish said packages.
"Sellers will not be responsible under this contract if shipment is prevented or delayed by war conditions, strikes, labor difficulties, accidents, embargoes, regulations or restrictions imposed by any government or governmental agencies, fire, or any other cause beyond the sellers' control, or if the supply of raw material of the refinery manufacturing the sugar described in this agreement shall be interrupted by any such cause. Option of routing is reserved by sellers. Delivery will be considered complete on receipt of goods by carrier.
"This purchase to be invoiced and paid for at contract price. No allowances whatever for declines in market; if shipment is made freight prepaid, the ruling prepaid freight basis to destination must be furnished when called for by sellers. All additional import duties, excise or other taxes, hereafter levied on the raw or refined sugar necessary to fill this contract at buyer's expense, in addition to price specified.
"Kindly sign and return one copy confirming purchase.
"Lamborn & Company
"Savannah, Ga., Brokers.
"This contract is accepted: Signed United Pro. Co., Buyer, by S. Blattner. Lamborn & Company, Seller, New York, N. Y, by G. G. Bond."
The petition alleged that defendant accepted and paid for 67 barrels of the sugar at the agreed price under the terms of the first contract above quoted, but that thereafter, notwithstanding tender in pursuance of the said agreements of the remainder, defendant failed and refused to receive the said sugar, and it was sold for the best price obtainable at a loss in the amount claimed as damages. Plaintiff alleged that, according to custom of the sugar business, a standard barrel of fine granulated sugar was understood to contain 350 pounds, but that as a matter of common knowledge and consent the weights would vary from 325 to 375 pounds.
Defendant filed original and amended pleas in defense. In the first he denied that within the period provided by the contract plaintiff was ready, willing, and able to deliver the sugar as alleged, or that there existed any custom or general usage by which 350 pounds was considered as a standard barrel of fine granulated sugar. In the amended pleas defendant averred that the 67 barrels of sugar accepted by him weighed 23,668 pounds, or was more than one-third of the first order of 200 barrels as alleged by plaintiff, and that the allegation that the sugar was shipped in accordance with the contract was untrue, and otherwise that the allegations of the petition were untrue. In this state of the record the case was tried before a jury, and at the close of plaintiff's evidence defendant requested the court to instruct a verdict in his favor but the request was denied. Thereafter, when the entire evidence was in, plaintiff likewise asked for an instructed verdict for the sum of $21,625.43, with interest at 7 per cent. from October 26, 1920, or a total of $27,020.38. This request was also refused, but upon a second similar motion by defendant the court instructed a verdict in his favor, using the following language:
"In this case, gentlemen, as I understand the issues, the declaration necessarily made, that barrel must contain a certain number of pounds of sugar; otherwise, the declaration would be amenable to the statute of frauds, the contract being for barrels, and the payment to be made per pound, the contract not specifying what those barrels should contain; that therefore it was necessary, before the plaintiffs could recover for the breach of and failure to proceed and take the number of barrels of sugar mentioned in the contract, the declaration should allege that these barrels, by common custom of the trade, should contain a certain number of pounds. The declaration alleged that. That was an issue in the case, and upon that issue depends the recovery of the plaintiff. Should they fail to show such custom in the trade, they could not recover. The contract would be no contract at all under the statute of frauds. That having been in writing, it could not be helped by oral testimony.
"Therefore it seems to me the main issue in this case, the issue first to be decided, is whether there is this general custom in the sugar trade that a barrel of sugar, of this particular grade, meant 350 pounds, and that all in that trade knew and understood that; that it was a generally known custom. You are therefore bound by the contract. Now, as I say, that seems to me to be the issue, the main issue upon which the plaintiff's recovery depends. Now, as I understand this testimony, all of it, I think without contradiction, is to the effect that that was understood; that the barrels were to contain 350 pounds. I mean, all the testimony of the plaintiff, except the testimony of some of the witnesses for the defendant, who said 3 bags, instead of 3½, to the barrel. But the testimony was very clear that they understood that this barrel of sugar was to be 350 pounds, but that it varied in the deliveries; not that each barrel should weigh 350 pounds, but that it varied in deliveries of sugar in the barrel; that those barrels could vary from 330 pounds to 375, and one witness testified as much as 390, in one instance.
"Now the question for the court to decide, it seems to me, is whether the plaintiff has sustained that issue, that there was this general, universal custom in the sugar trade; and under this testimony I don't think that the plaintiff has maintained that issue. Therefore I think I will have to give the requested instruction for the defendant. I do not think it is necessary to make any minute entry when I give that, because I note your exception to that charge. There is no use to incumber the record with these other charges. And the plaintiffs did then and there except said ruling, to which exception was duly noted by the court. And thereupon the court did instruct and charge the jury...
