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

Citation141 N.E. 613,194 Ind. 462
Decision Date06 December 1923
Docket NumberNo. 24508.,24508.
PartiesMASON PRODUCE CO. v. HARRY C. GILBERT CO.
CourtSupreme Court of Indiana

OPINION TEXT STARTS HERE

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

Action by the Mason Produce Company against the Harry C. Gilbert Company. Judgment for defendant, and plaintiff appeals. Transferred from Appellate Court under Burns' Ann. St. 1914, § 1394, subd. 2. Reversed, with directions to sustain plaintiff's motion for new trial.

Superseding opinion 138 N. E. 100.

Bingham & Bingham, of Indianapolis, for appellant.

Bachelder & Bachelder, of Indianapolis, for appellee.

EWBANK, C. J.

Appellant sued for damages, but recovered nothing. The complaint counted upon alleged negligence of appellee, while acting as a merchandise broker, in failing to notify appellant that a party who had ordered a carload of beans by telegraph through appellee's agency had thereafter directed that the order be canceled, and had refused to sign a written contract of purchase. The defendant answered by a denial. There was a general finding for the defendant, and a judgment against the plaintiff for costs. Overruling the motion for a new trial is assigned as error, under which appellant first insists that the finding is not sustained by sufficient evidence. The evidence consisted wholly of a stipulation in writing setting out certain telegrams and correspondence, and two depositions, taken in Colorado and Kentucky, respectively, which also set out certain telegrams and correspondence. There is no conflict in any of this evidence. A single witness was produced and sworn in the court, but he testified only to his name, where he worked, and how long he had been employed there, an objection being sustained to all his other offered testimony.

Of the facts averred in the complaint the evidence proved without dispute: That plaintiff was a corporation doing business in Colorado, engaged in selling food products at wholesale. That defendant was a corporation doing business at Indianapolis, Ind., engaged in the business of selling such food products as a broker. That a company at Lexington, Ky., telegraphed to appellee at Indianapolis an order for a “car recleaned Colorado Pinto beans this year's crop eight cents per pound f. o. b. Colorado *** for car rolling now en route.” Appellee replied by telegraph with an offer of “Colorado Pintos seven seventyfive prompt shipment,” and confirmed the offer by a letter which stated that we did not offer any cars in transit.” But on the forenoon of the day that the letter of confirmation was written the company at Lexington replied to appellee's telegram by wiring the words: “Offer seven half car new Colorado Pinto shipment next week.” That this telegram was sent about noon on a Saturday. That because Saturday afternoon was a half holiday it did not reach appellee until 5 p. m., and the next day (Sunday) appellee telegraphed appellant for authority to accept the offer. That about noon on the next day thereafter (Monday) appellee received from appellant by telegraph authority to do so, and then wired to the Lexington Company, “Confirm car Colorado Pintos seven fifty per your wire Saturday,” and the same day wrote and mailed to the Lexington Company a letter, which was received the day following, acknowledging receipt of the wire Saturday, stating that We have confirmation this afternoon from the Mason Produce Co. on car as per sales ticket inclosed, and have in turn wired you confirmation on this car. *** Contract will be along in a few days which we will forward for your signature.” That after receiving the telegram last above mentioned (and before receiving the letter of confirmation, but whether before or after that letter was mailed does not appear) the Lexington Company telegraphed to appellee to “Cancel offer Colorado Pinto. Bought elsewhere. Delayed too long”-which was received by appellee the same day (Monday). That evening appellee sent the Lexington Company a “night letter” telegram, saying it was too late to cancel, and the next day wrote a letter to the same effect, stating that appellee had wired confirmation of the order as soon as authority was received from the shippers in Colorado, and before the wire to cancel the order had been sent. That appellant forwarded to appellee a form of written contract of sale by appellant to said Lexington Company of a carload of 60,000 pounds of Pinto beans at “7.50 per cwt. f. o. b. Greely, Colo.,” on terms and conditions as therein stated, bearing the signature of appellant, and dated on Monday, the day the telegram of confirmation was sent, which appellee forwarded to the Lexington Company for execution by it, but on the next Friday that company returned the contract to appellee unsigned, with a letter stating that “You delayed too long in answering,” and suggesting that, if the car had been already started, it be diverted to some other point, as the company could not accept shipment. That appellee did not in any manner communicate to appellant the fact that the Lexington Company had telegraphed to...

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