Lyng v. Bugbee Distributing Co.

• Decision Date: 13 July 1938
• Citation: 133 Fla. 419,182 So. 801
• Parties: LYNG v. BUGBEE DISTRIBUTING CO.
• Court: Florida Supreme Court

182 So. 801

133 Fla. 419

LYNG v. BUGBEE DISTRIBUTING CO.

Florida Supreme Court

July 13, 1938

Error to Circuit Court, Osceola County; Frank A. Smith, Judge.

Action by W. Lyng against the Bugbee Distributing Company to recover a balance due on the contract price of potatoes sold by plaintiff to defendant. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

BROWN J., dissenting.

COUNSEL George P. Garrett, of Orlando, and Lawrence Rogers, of Kissimmee, for plaintiff in error.

W. J Steed and Arthur L. Steed, both of Orlando, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment of the Circuit Court in favor of the defendant in a suit wherein the plaintiff claimed the sum of $719.15, the difference between the contract price of potatoes sold by plaintiff to the defendant and the down payment of $500 made by the defendant to the plaintiff on delivery of the potatoes.

Jury was waived and the case was tried before the Judge. The Judge made findings of fact as follows:

'Finding No. 1: The Court finds that, while it may be that Captain William Lyng was of the opinion that he had sold his potatoes to the Bugbee Distributing Company pursuant to an agreement made in Kissimmee, Florida, on April 18, 1935, whereby the Bugbee Distributing Company quoted to Captain Lyng $2.05 per bushel crate for No. 1 potatoes and $1.70 per bushel crate for No. 2 potatoes, Mr. Barstow, representing the Bugbee Distributing Company, and Mr. Brocklehurst did not so understand.

'According to the testimony potatoes are not purchased cash on barrel head and Barstow thought he was handling the Lyng potatoes according to the custom which is quoted price at the market subject to grade, pack and quality. Therefore, there was no meeting of the minds between Captain Lyng and the Bugbee Distributing Company, and hence no contract of sale.

'Finding No. 2: The Court finds that since there was no contract of sale between the parties and since the Bugbee Distributing Company actually received and accepted the potatoes, the Bugbee Distributing Company is responsible to Capt. Lyng, the plaintiff, for the reasonable value of the potatoes so received and accepted by the Bugbee Distributing Company.

'Finding No. 3: The Court finds that the reasonable value of the potatoes belonging to Captain Lyng, and received and accepted by the Bugbee Distributing Company, as established by the evidence, is the net receipts for the potatoes received by Bugbee Distributing Company from Chester Franzell & Company, after deducting the cost of transportation and handling, which net receipts were evidenced by the check Chester Franzell & Company sent to the Bugbee Distributing Company dated May 4th, 1935, in the amount of $496.00.

'Finding No. 4: On the basis of the foregoing findings, the Court finds for the Defendant.'

We, having considered the entire record, reach the conclusion that Bugbee Distributing Company, through its agent and representative, purchased from Lyng a certain lot of potatoes for and at the agreed price of $2.05 per bushel crate for No. 1 potatoes and $1.70 per bushel crate for No. 2 potatoes, less $40 to be retained out of purchase price by Bugbee Distributing Company, f. o. b. cars Kissimmee, Florida, and paid cash on the purchase $500.00; and that the aggregate amount to be paid was to be determined by the number of bushels of No. 1 potatoes and the number of bushels of No. 2 potatoes as checked and graded at destination.

We further find that according to the accounts sales and by the testimony, 'the car contained by actual unloading check 319 crates of No. Ones and 356 crates of No. Twos.'

The finding by the Judge, 'According to the testimony potatoes are not purchased cash on barrel head and Barstow thought he was handling the Lyng potatoes according to the custom which is quoted price at the market subject to grade, pack and quality. Therefore, there was no meeting of the minds between Captain Lyng and the Bugbee Distributing Company, and hence no contract of sale,' we hold, injected an element into this case which has no place here....