Larabee Flour Mills Corporation v. City Flour & Grain Co.

• Decision Date: 20 October 1925
• Docket Number: No. 2228.,2228.
• Citation: 9 F.2d 44
• Parties: LARABEE FLOUR MILLS CORPORATION v. CITY FLOUR & GRAIN CO.
• Court: U.S. Court of Appeals — Fourth Circuit

9 F.2d 44 (1925)

LARABEE FLOUR MILLS CORPORATION v. CITY FLOUR & GRAIN CO.

No. 2228.

Circuit Court of Appeals, Fourth Circuit.

October 20, 1925.

R. B. Paslay, of Spartanburg, S. C. (Evans & Galbraith, of Spartanburg, S. C., on the brief), for plaintiff in error.

Jesse W. Boyd, of Spartanburg, S. C. (L. K. Brice and Brown & Boyd, all of Spartanburg, S. C., on the brief), for defendant in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL, Circuit Judge.

Plaintiff in error instituted this action in the United States District Court for the Western District of South Carolina, to recover damages for the alleged breach of a contract entered into with the defendant in error on the 9th of August, 1920, whereby plaintiff in error contracted to sell, and the defendant to purchase, 1,000 barrels of flour at $12.60 per barrel. This contract was made in behalf of the plaintiff in error by J. J. Wilkes, and on behalf of the defendant in error by W. B. Harrison, and set forth particularly the terms and conditions of the payments thereunder, to be made by draft drawn on a bank at Spartanburg, S. C., the home place of the defendant corporation, time of shipment 60 days; and further provided that the contract was to be subject to confirmation by the seller at Atlanta, Ga., and that the terms and conditions were to be binding on both parties to the contract, and could not be modified except by their written consent, and no verbal conditions, warrants, or modifications should be valid. The contract also provided for extensions of the times of delivery, and the method of procedure in case of default on the part of the parties in carrying out the same. Simultaneously with entering into the contract, Wilkes, acting in behalf of his company, made the following provision for extension:

"City Flour & Grain Co., Spartanburg, S. C. — Gentlemen: With the attached contract for 1,000 barrels Larabee's flour for shipment in 60 days, it is hereby agreed between buyer and seller that the Larabee Flour Mills Corp. will not force shipment on the buyer City Flour & Grain Co., or make any carrying charge on this contract, before March 1st, 1921. All other parts of this contract shall be binding on both buyer and seller. Signed in ink J. J. Wilkes. This 8/9/20 written in pencil. The above will apply on contract extended 11/4/20. J. J. Wilkes. 11/4/20."

On the 9th of August, 1920, plaintiff in error wired defendant in error from Atlanta, Ga., "Confirm you thousand barrels Dixie Dream twelve sixty subject freight changes," and on August 10th, 1920, a letter of confirmation was also written, as follows:

"We confirm sale made you August 9, 1920, by J. J. Wilkes, as follows: 1,000 bbls. Dixie Dream Flour 98 lb. Cot. basis at $12.60 per bbl. f. o. b. mill — freight allowed Spartanburg. Terms: Arrival draft bank Bank of Spartanburg. Time of shipment 60 days. Subject adjustment of freight rates. For local office. Signed Larabee Flour Mills Corporation, by C. T. Bramblett, Branch Manager."

On the 13th of August, defendant in error wrote plaintiff in error as follows:

"Dear Sirs: Attention Mr. Bramblett. In your letter confirming flour sale made to us by your Mr. Wilkes, you failed to confirm the conditions on which this sale was made. Please confirm this by return mail. We are not uneasy but what this part of the contract will be all right, as it is, but Mr. Wilkes explained that it would have to be confirmed by you. Thanking you for your prompt attention, we are,

"Yours very truly "Signed City Flour & Grain Co."

On the 17th, of August, plaintiff in error wrote defendant in error in reply, thanking them for the contract, and saying, among other things:

"Replying to your letter of August 13th in regard to flour sold you by our Mr. J. J. Wilkes some few days since. You may rest assured that your contract will be looked after in the manner which Mr. Wilkes described to you. * * *"

The memorandum of the extension made in pencil, signed on the 4th of November 1920, seems to have been the result of an extension of the contract made on that day at plaintiff in error's request, and caused doubtless in part by the desire not to put upon the face of the original paper the matter of the extension to March 1, 1921, on account of some regulation prescribed by the Southeastern...