Larabee Flour Mills Co. v. Carignano

• Decision Date: 30 March 1931
• Docket Number: No. 377.,377.
• Citation: 49 F.2d 151
• Parties: LARABEE FLOUR MILLS CO. v. CARIGNANO.
• Court: U.S. Court of Appeals — Tenth Circuit

49 F.2d 151 (1931)

LARABEE FLOUR MILLS CO. v. CARIGNANO.^*

No. 377.

Circuit Court of Appeals, Tenth Circuit.

March 30, 1931.

A. A. Davidson, of Tulsa, Okl. (H. M. Noble and McCune, Caldwell & Downing, all of Kansas City, Mo., and West, Gibson, Sherman, Davidson & Hull, of Tulsa, Okl., on the brief), for appellant.

S. A. Horton, of Oklahoma City, Okl. (Claud Briggs, of Wilburton, Okl., on the brief), for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

This is an action at law for breach of a contract to buy flour. The jury returned a verdict for the defendant — the buyer — and plaintiff appeals. The principal error assigned is that plaintiff was entitled to an instructed verdict for the amount of damage fixed by the contract. This assignment calls for the decision of two questions: Was the contract confirmed? If so, is the agreement as to the amount of damage enforceable?

There is little law involved in the first question. The order for the flour was signed by the buyer, the "party to be charged" under the Oklahoma statute of frauds (Comp. St. Okl. 1921, § 5034, subsec. 4). Edgar v. Reeser (C. C. A. 10) 46 F.(2d) 277; Kingfisher M. & E. Co. v. Westbrook, 79 Okl. 188, 192 P. 209; Harper v. Goldschmidt, 156 Cal. 245, 104 P. 451, 28 L. R. A. (N. S.) 689, 134 Am. St. Rep. 124; Beckwith v. Clark (C. C. A. 8) 188 F. 171; Williston on Contracts, vol. I, § 586. The order provided that "this contract is subject to confirmation by the seller." It was therefore necessary that the order be confirmed within a reasonable time, and the fact of confirmation communicated to the buyer. But confirmation need not be in writing, nor in any particular form. Confirmation of an order is but an acceptance of an offer, and may be accomplished orally, or by acts, or by both. Milliken-Tomlinson Co. v. American Sugar Refining Co. (C. C. A. 1) 9 F.(2d) 809; Williston on Contracts, vol. I, §§ 70, 90, 93.

Whether an offer has been accepted is a question of fact. On an appeal in an action at law, conflicting evidence must be resolved in favor of the prevailing party, and a verdict of a jury is conclusive if it is supported by substantial evidence. If, on the other hand, all of the substantial evidence is one way, the question presented is one of law, and the trial court should direct a verdict. A scintilla of evidence will not support a verdict in the United States courts. Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Small Co. v. Lamborn & Co., 267 U. S. 248, 45 S. Ct. 300, 69 L. Ed. 597; Woolworth v. Davis (C. C. A. 10) 41 F.(2d) 342, 347; Waddell v. A. Guthrie & Co. (C. C. A. 10) 45 F.(2d) 977, 978.

The first point then turns on the facts. Defendant concedes that on July 17, 1928, he signed a document entitled "Millers' National Federation Uniform Sales Contract" and handed it to W. Brooks, a salesman of plaintiff. That contract recites that the plaintiff sells and the defendant buys "the following commodities, to be manufactured, F. O. B. cars to initial carrier at shipping point." The commodities listed were 5000 barrels of Cream Loaf flour at $6.40 per barrel, and 100 barrels of Dixie Dream flour at $7.65 a barrel. The time of shipment was fixed as June 1, 1929, the buyer having the right to order out the flour at any time in the interim on fourteen days' notice. The contract was signed by defendant, but was not confirmed on the contract itself, although a space was provided for that purpose.

The next day, the home office, by telephone, instructed Mr. Brooks to wire a confirmation of the order, and pursuant to that authority he wired defendant as follows:

"C. Carignano, Wilburton, Oklahoma. Confirm five thousand barrels loaf six forty June first.

"Larabee Flour Mills."

The defendant admits receiving this wire; it sufficiently identifies the contract intended to be confirmed, for, while it does not mention the small item of 100 barrels of Dixie Dream flour, the amount, price and time of shipment of the 5000 barrels of Cream Loaf flour is specified. The defendant, in his testimony, makes no point of the omission of the 100 barrels, but claims that later in the day Brooks telephoned him that "I wired you the confirmation I try to put it through and you going receive confirmation from the headquarters."

The plaintiff then bought 23,460 bushels of wheat to cover this flour contract, although there is no proof that defendant was advised of this purchase. On August 9, defendant, in writing, sent plaintiff shipping instructions for 600 sacks of "Ætna Best" flour. It appeared that plaintiff and defendant had entered into a contract during the previous wheat-year for flour at $6.90 a barrel, of which about 300 barrels remained unshipped when the new contract was made. When the August 9 shipping instructions came in, plaintiff advised defendant that it was applying the order against the old contract at $6.90, instead of against the new contract at $6.40. When defendant received this advice, he wired to cancel the order of August 9. An agreement was then made to cancel the unfilled portion of the old and higher priced contract, and to apply the August 9 order against the newer and lower priced contract, applying the usual differential on account of the difference in brands. The defendant accepted the shipment.

During the next eight months there were fluctuations in the price of flour, of which defendant was advised; at intervals defendant ordered out 885 barrels of flour. Yet, no matter what the current market was, the defendant was always billed at the contract price, and defendant uniformly accepted the flour and paid for it at the contract price. In instructions given for such shipments, signed by defendant, a price would be fixed for feed stuffs and certain brands of flour; but on Cream Loaf or Dixie Dream, either no price would be extended in the column for price, or there would be written in the symbol "Con." standing for contract. That defendant ordered out this flour, accepted it, and paid for it at the contract price, is undisputed. In his amended answer, defendant explains this by alleging that "in each instance the delivery by plaintiff and acceptance by defendant of flour thereafter, was on independent purchase contracts as to each separate shipment thereof." But this explanation would not hold water, for the shipping orders carried no price, and the flour was all paid for at the same price, although ordered out at intervals and when current prices did not conform. So in the evidence no attempt was made to establish this explanation; instead, an explanation was offered that was not pleaded, to wit, that defendant intended these shipping instructions to apply against the contract of the year before. This explanation does not dovetail into the record facts. The old contract was at $6.90 a barrel; he only paid $6.40 for the flour; there were only 300 barrels due on the old contract on July 1, 1928, but he ordered out 885 barrels; and the old contract was canceled by mutual consent before any of these shipments was ordered out. Defendant asserts that some salesman voluntarily reduced the old contract from $6.90 to $6.40 a barrel, but no proof of any such authority is shown or claimed. The other inconsistencies are not explained.

The plaintiff wrote defendant on January 2, 1929, and again on January 30, calling attention to the unfilled balance of the contract, and urging him to order out the flour more rapidly. No answers were received, except that defendant ordered out three shipments of flour thereafter. On June 1, 1929, plaintiff exercised its contract right to terminate the contract.

Defendant undertakes to meet this formidable evidence in several ways. He contends that he wrote plaintiff on July 31, 1928, saying he had not received any confirmation, and asking whether it was going to confirm. It is doubtful if this letter was admitted in evidence, for the stenographer's report of the trial does not so disclose; if admitted, it should not have been, for there was no proof of mailing. But it is immaterial; the proof is undisputed that no such letter was received, and if received, it would have no evidentiary bearing on the proof of confirmation as above narrated. He further testified that about the middle of August Mr. Brooks, the salesman, told him that "headquarters he don't confirm the contract because he don't want you speculating." In passing it may be observed that Brooks, a witness for defendant, does not corroborate this. But, in any event, Brooks had no authority to make or cancel a contract. Before that alleged conversation, defendant had received the telegram of confirmation, and about that time had received flour on the contract; and after the conversation, defendant repeatedly ordered, received, and paid for flour under the contract.

In our opinion, this evidence presents no issue of fact for a jury. The defendant concedes his signature to the contract; concedes the receipt of the telegram of confirmation; concedes that over a period of eight months he ordered out flour and received it at the contract price, no matter what the current market was. The explanation offered by him is not pleaded, and, what is of more consequence, it is at variance with undisputed record evidence. In short, it will not wash. "When the testimony of a witness is positively contradicted by the physical facts, neither the court nor the jury can be permitted to credit it." American Car & Foundry Co. v. Kindermann (C. C. A. 8) 216 F. 499, 502; Missouri, K. & T. Ry. Co. v. Collier (C. C. A. 8) 157 F. 347, cert. denied 209 U. S. 545, 28 S. Ct. 571, 52 L. Ed. 920; Woolworth Co. v. Davis (C. C. A. 10) 41 F.(2d) 342, 347; Kelly v. Jones, 290 Ill. 375, 125 N. E. 334, 8 A. L. R. 792, and annotation 796, 798. The plaintiff was entitled to a directed verdict.

As to the question of damages. The contract provides:

"If the buyer shall fail to furnish shipping instructions or...