Mason Produce Co. v. Harry C. Gilbert Co., 11485.

• Citation: 138 N.E. 100
• Decision Date: 15 February 1923
• Docket Number: No. 11485.,11485.
• Parties: MASON PRODUCE CO. v. HARRY C. GILBERT CO.
• Court: Court of Appeals of Indiana

138 N.E. 100

MASON PRODUCE CO.

v.HARRY C. GILBERT CO.

No. 11485.^*

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1923.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Action by the Mason Produce Company against the Harry C. Gilbert Company. From judgment for defendant, plaintiff appeals. Affirmed.

Bingham & Bingham, of Indianapolis, for appellant.

Harold K. Bachelder and William C. Bachelder, both of Indianapolis, for appellee.

NICHOLS, C. J.

Action by appellant against appellee to recover damages resulting from failure of appellee, while acting as broker, to notify appellant of the attempted cancellation of an order. The error assigned is the court's action in overruling appellant's motion for a new trial.

The substance of an agreed stipulation of facts, briefly stated, is: That appellant was at all times here involved a corporation engaged in the business of selling at wholesale food products, with its principal place of business at Greeley, Colo., and that during such time, appellee was a corporation engaged in the brokerage business in Indianapolis, Ind., handling such products. That, after preliminary correspondence, both by mail and telegraph, negotiating for the sale of a carload of Colorado Pinto Beans, on October 19, 1918, E. L. Martin & Co. of Lexington, Ky., by the name and style of E. L. Martin, made an offer to appellee of $7.50 per hundred f. o. b. Colorado. Appellee wired appellant for authority to accept the Martin Company's offer, and appellant gave appellee authority therefor on October 21, 1918, by wire, which authority was received about noon of that day. Appellee thereupon wired the Martin Company accepting its offer, which telegram was received by the Martin Company in due course. After receiving such telegram, the Martin Company, on the same day, wired appellee to cancel its offer for the reason that it had bought elsewhere because of delay. Thereupon, on said October 21, 1918, appellee wired the Martin Company that it was too late to cancel, as appellee had wired in the afternoon accepting the Martin Company's offer, and on October 22, 1918, wrote the company to the same effect.

A written contract covering the terms of sale was prepared by appellant, and forwarded from Greeley, Colo., to appellee, to be forwarded to the Martin Company for its signature. Appellee, in its letter to the Martin Company of October 21, 1918, referred to this contract, stating that it would be along in a few days and would then be forwarded for signature. Such contract was received by appellee some time between October 21 and October 25, and was forwarded to the Martin Company for signature. But it was not signed, and was returned to appellee, unsigned, in a letter dated October 25, 1918. October 28, 1918, appellee acknowledged receipt of this unsigned contract, stating that it was “just in receipt” of it and returned it to the Martin Company with an argumentative letter to the effect that the contract of sale was complete on acceptance October 21, 1918, before the attempted cancellation, urging the company to sign the written memorandum thereof, which the Martin Company refused to do.

Appellee did not advise appellant of the correspondence aforesaid with the Martin Company until November 13, 1918. On or about October 26, 1918, appellant loaded and shipped said car of beans from Greeley, Colo., to Lexington, Ky., without any notice or knowledge of the Martin Company's attempted cancellation of said offer, and drew a sight draft on the Martin Company, with bill of lading attached which draft was not paid. The car reached its destination, on November 11, 1918, and was refused by the Martin Company. Appellee refused to assume further responsibility for the car, saying that it was not appellee's property, and appellant, through another broker, afterward sold the same at a loss, as it claims, of $951.74, for which it sues as damages suffered. Appellee contends with much force that the correspondence, telegraphic and mail,...