Lamborn v. Woodard
| Decision Date | 05 July 1927 |
| Docket Number | No. 2579.,2579. |
| Citation | 20 F.2d 635 |
| Parties | LAMBORN et al. v. WOODARD et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
H. G. Connor, Jr., of Wilson, N. C. (Hitch, Denmark & Lovett, of Savannah, Ga., and Connor & Hill, of Wilson, N. C., on the brief), for plaintiffs in error.
J. C. B. Ehringhaus, of Elizabeth City, N. C. (Ehringhaus & Hall, of Elizabeth City, N. C., and H. R. Leary, of Edenton, N. C., on the brief), for defendants in error.
Before WADDILL and ROSE, Circuit Judges, and BAKER, District Judge.
Lamborn & Co., plaintiffs in error, plaintiffs below, were engaged, among other things, in buying and selling of sugar. James A. Woodard-Holmes Company, defendants in error, defendants below, were wholesale merchants located in the small town (population about 3,000) of Edenton, N. C.; their trade being largely rural and consisting in sales to small country stores. It will tend to a clearer understanding if they be designated by the positions they occupied in the trial court.
The plaintiffs, under date of June 8, 1920, sent to defendants a telegram reading as follows:
To this the defendants replied on same day:
The next day (June 9, 1920) plaintiffs wired defendants as follows:
There were no other communication or correspondence between the parties until June 22, when plaintiffs wrote defendants a letter, in which they refuse expressly to make shipments until and unless contract, claimed to have been theretofore forwarded, is duly signed by both parties.
Nothing further occurred between the parties until July 15 — three weeks after the letter of June 22 and about five weeks after the date of telegrams — when plaintiffs wrote defendants a letter in which they sought to introduce two entirely new provisions into the alleged contract: (a) Change in date of delivery from July or August for first one-third to June or July; and (b) change the delivery of entire order in 100-pound bags as specified to 50 per cent. thereof in barrels weighing from 315 to 365 pounds, and further state: "If we fail to hear from you immediately we will take your silence as an acceptance of the assortment we desire to ship out."
On July 17 (apparently by return mail) defendants answered:
By subsequent correspondence plaintiffs expressed desire to ship but continued to insist upon 50 per cent. being accepted in barrels weighing from 315 to 365 pounds each.
Defendants never signed the contract demanded by plaintiffs in their letter of June 22, and never accepted any part of the sugar in question. Plaintiffs offered the sugar for sale, and on November 2, 1920, sold it to Paradise & Rich, Atlanta, Ga., at eleven cents per pound, and sent defendants a statement showing balance due of $3,048.60 as a loss, which defendants declined to pay, and this action was instituted.
Practically the only question involved is whether or not a contract was made by the exchange of the three telegrams hereinbefore quoted. The plaintiffs insist that the acceptance, in the light of the allegations of article 7 of the complaint, "In the sugar trade, fifty seven barrels is the same as 200 bags," and the defendants insisting that they offered to purchase 200 bags of sugar weighing 100 pounds each, and no other sized parcels or packages, and that plaintiff was compelled to accept the offer in such terms to make a contract.
The learned judge below instructed the jury that no contract was made as alleged, that the defendants did not wrongfully refuse to accept and pay for the sugar in question, and that defendants were not indebted in any amount to the plaintiffs, and in compliance therewith the jury did so find.
There are four assignments of error, the latter two being formal, the case being brought here upon the first and second; the first being plaintiffs' exception to the charge of the court directing the jury to find there was no contract made as alleged, and the defendants did not wrongfully refuse to accept and pay for the sugar in question; the second being to the refusal of the court to submit the issues to the jury under proper instructions.
There is no question about the well-known and equally well-established proposition that "where a person offers to do a definite thing, and another accepts conditionally, or introduces a new term into the acceptance, his answer is a mere expression of willingness, and is not a definite agreement to perform." In order to construct a contract, there must be a proposal squarely assented to. There must be a meeting of two minds in one and the same intention, in order to constitute a contract, and an acceptance of an offer varying in terms is a rejection of the offer. Minneapolis & St. L. Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 149, 7 S. Ct. 168, 30 L. Ed. 376; Wilson v. Lumber Co., 180 N. C. 271, 104 S. E. 531; Rucker v. Sanders, 182 N. C. 607, 109 S. E. 857; Watters v. Hedgepeth, 172 N. C. 310, 90 S. E. 314; Clark v. Lumber Co., 158 N. C. 145, 73 S. E. 793; Cozart v. Herndon, 114 N. C. 252, 19 S. E. 158. 13 Corpus Juris, pp. 281, 282.
The defendants admittedly were small town wholesalers (population of Edenton 3,000), their trade being limited to the rural district surrounding and sales to small country stores. The defendants testified, and it is uncontradicted, that their trade could not handle sugar in barrels, but that they could...
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...Co., 216 N.Y. 310, 318, 110 N.E. 619; Mahar v. Compton, 18 App.Div. 536, 45 N.Y.S. 1126, 1128; Lamborn v. Woodard, 4 Cir., 20 F.2d 635, 636, et seq.; Canton Cotton Mills v. Southwest Overall Co., 8 Cir., 8 F.2d 807, 809; Columbia Malting Co. v. Clausen-Flanagan Corporation, 2 Cir., 3 F.2d 5......
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...the custom and usage of the trade. To support his contention he cites an early decision of this court applying North Carolina law, Lamborn v. Woodard, 20 F.2d 635 (4 Cir. 1927). Plaintiffs, however, take the position that the contract was silent as to the manner in which the work was to be ......