Menke v. Willcox

• Decision Date: 09 March 1921
• Citation: 275 F. 57
• Parties: MENKE et al. v. WILLCOX et al.
• Court: U.S. District Court — Southern District of New York

275 F. 57

MENKE et al. v. WILLCOX et al.

United States District Court, S.D. New York.

March 9, 1921

This is an action at law upon the assumed adoption of a contract by the defendants as receivers. By consent the parties agreed to a trial before a jury of one and at the conclusion of the evidence each side moved for a direction of the verdict. The court took the case under advisement.

William J. Farrell was an exporter doing business in the city of New York, and on the 5th day of April, 1920, his creditors filed the usual creditors' bill in sequestration with his consent, alleging that his affairs were in confusion and his assets likely to be dissipated by repeated executions and attachments, by which the rights of the creditors would be injured. Upon the bill and consent the defendants were appointed receivers on that day, with power to continue the business in their discretion for a time extending beyond the events hereinafter set forth.

A few days before January 20, 1920, one O'Sullivan, an employee of Farrell, made an oral contract with Webber, an employee of the plaintiffs, and on that day Farrell signed and delivered a written 'confirmation,' agreeing to purchase '120 pieces each, about 30 yards style 4281 taffeta, at $2.75 per yard. ' The 'confirmation' also contained the terms of payment, a full description of the goods, how they should be packed, and the time of shipment. Of the 120 pieces so ordered, the plaintiffs delivered 28 pieces to Farrell before the receivers were appointed. After their appointment, Webber, representing the plaintiffs, had talks on the telephone with O'Sullivan, and some time in April came to see Mr. Eggers, one of the receivers. Webber kept asking for shipping instructions for the goods, which were then packed and ready for delivery f.a.s. New York, as required by the contract; but in these interviews the receivers gave no instructions, and did not declare their decision in any other way to adopt or renounce the contract. On June 4, 1920, at the request of O'Sullivan, the plaintiffs sent a bill or 'invoice' to the receivers describing 90 pieces of silk of the kind required by the contract and billed to the receivers personally. The contract called for 92 pieces, not 90; but the difference had been waived by O'Sullivan upon Webber's statement that 2 of the pieces reserved had proved defective. Eggers saw this bill shortly after its delivery, but took no action upon it except by cabling to his South American correspondents to see whether the goods could be profitably resold in Brazil.

No other transactions of any moment took place between the parties until August 7, 1920. On that day the defendants wrote a letter to the plaintiffs, of which the following is a copy:

'Gentlemen The receivers do not acknowledge any responsibility or adopt any contract or other transaction of William J. Farrell except as expressly and specifically stated by them. (In print.)

'In reference to your invoices of June 4th, covering the balance of merchandise due us against order No. 21551, as your Mr. Webber knows when he was down to our office on various occasions regarding the disposition of this matter, the customer has refused to accept the first shipment of the merchandise.

'We have done all we possibly could to get them to accept, and have cabled them direct, as well as to our agents, and also to the bank, who has taken a special interest in this matter.

'Their taking the matter up as above has been of no avail, and we are now in receipt of advice from our agent, requesting us to cancel the order.

'We would appreciate your co-operation in this matter and cancel this order, letting us have a credit memo. covering your bill by return mail.

'We dislike very much to ask you to cancel this invoice; but, in view of the unfortunate situation that we are in, we trust you will comply with the request as above.

'Thanking you for the many past favors which you have done for Mr. William J. Farrell and ourselves, we are

'Yours very truly,

William R. Willcox and Herman H. Eggers,

'As Receivers of William H. Farrell,

By W. R. Willcox, Receiver.'

'JWB O'S.EA.

To this letter the plaintiffs replied on August 10th,...