Meyer v. Everett Pulp & Paper Co.

• Decision Date: 13 February 1912
• Docket Number: 2,023.
• Citation: 193 F. 857
• Parties: MEYER et al. v. EVERETT PULP & PAPER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F. 857

MEYER et al. v. EVERETT PULP & PAPER CO.

No. 2,023.

United States Court of Appeals, Ninth Circuit.

February 13, 1912

[Copyrighted Material Omitted]

This is an action to recover for certain China clay sold and delivered by the plaintiffs to the defendant. The character of the questions involved necessitates setting forth the pleadings with some particularity. The complaint sets forth that on October 15, 1906, plaintiffs and defendant entered into a contract in writing, whereby the plaintiffs agreed to sell to defendant, and the defendant agreed to purchase about 300 to 400 tons of 2,240 pounds each of China clay in casks of the brand known as 'P.X.Y.' at the rate of 70 cents per 100 pounds, net weight, ex ship at Seattle Wash. The sale was made for shipment, per the ship Mozambique, from Leith, Scotland, or Tyne, England, to Seattle, delivery to be taken by the purchaser from alongside the vessel at once on discharge at Seattle, such clay to be at the risk of purchaser, and wharfage, if any, at Seattle to be for its account. Pursuant to the contract, plaintiffs delivered on board the ship Mozambique, at Newcastle-on-the-Tyne, England, 1,600 casks of China clay of the P.X.Y. brand, the gross weight of which was 425 tons, containing 952,000 pounds. The tare on the barrels was 25 tons, aggregating 56,000 pounds, making the total net weight 400 tons, containing 896,000 pounds. Thereafter the ship Mozambique sailed for Seattle, and prior to the 12th day of October, 1907, discharged at the dock of Galbraith-Bacon & Co., at Seattle the China clay so shipped, and the defendant, pursuant to said contract, took delivery thereof from alongside the ship and ex ship at Seattle, Wash. The amount demanded is $6,272, with interest from the 12th of October, 1907, at 6 per cent.

The answer denies that the contract was entered into on the 15th of October, 1906, but avers that it was entered into on the 11th day of October; denies that the plaintiffs delivered or discharged at the dock of Galbraith-Bacon & Co. at Seattle 1,600 casks of China clay, P.X.Y. brand; denies that the China clay of the brand so delivered contained 896,000 pounds, or that the defendant took delivery thereof alongside of and ex ship at Seattle; and denies that the sum of $6,272, or any other sum except $3,375.12, is due the plaintiffs. For a further and separate answer, it is set forth that on or about the 11th day of October the defendant ordered of the plaintiffs 300 or 400 tons of P.X.Y. China clay, to be fully equal to sample which had theretofore been submitted by plaintiffs to the defendant, at the contract price of 70 cents per 100 pounds, ex ship at Seattle, duty paid; that said order was accepted by the plaintiffs on or about the 15th day of October, 1906, and thereafter the plaintiffs, in the month of October, 1907, delivered on the wharf of Galbraith-Bacon & Co. at Seattle, Wash., 1,600 casks of alleged China clay; that it is not customary in the clay trade to inspect casks on board the dock because of the expense and inconvenience, and, pursuant to the custom existing in the trade, the said clay was forwarded to the factory or plant of the defendant at Everett, Wash., where, upon inspection, it was found that of the clay 861 casks conformed to the sample submitted of P.X.Y. brand, and 739 casks were of an entirely different brand, and that the said brand of the 739 casks was far inferior to the sample submitted by the plaintiffs and upon which the contract was based; that, on discovery that there were included in the shipment of clay casks of different brand and of inferior quality, the defendant notified the plaintiffs thereof, and refused to accept the shipment; that at this time there remained on the dock at Seattle 253 casks, which it was agreed, after some correspondence, the defendant should take to its plant at Everett, without admission of liability for the shipment, and without expense to it if defendant's claim as to the inferiority of the clay should be proved correct; that of these 253 casks, 133 were of the brand inferior to sample, and are now, and at all times have been, held by the defendant as the property of the plaintiffs and subject to their orders; that the defendant has offered, and has been and is ready and willing, to return also the 606 casks inferior to sample to the wharf at Seattle, without expense to plaintiffs, but that plaintiffs have refused to accept the same or any portion thereof; that the value of the 861 casks like sample is $3,375.12, which defendant brings into the registry of the court, with interest thereon from October 12, 1907, to date of answer, amounting to $50.63, aggregating $3,425.75.

The plaintiffs by their reply admit that on the 11th of October, 1906, they contracted to deliver to the defendant 300 or 400 tons of P.X.Y. China clay, of a quality equal to sample theretofore submitted to the defendant, and that thereafter, in the month of October, 1907, they delivered on the wharf of Galbraith-Bacon & Co., at Seattle 1,600 casks of clay, but deny that a portion of the clay so delivered did not conform to sample, and deny the custom as it pertains to the inspection of casks on board dock at Seattle as set up in the answer. They also deny that any of the clay shipped was of a different brand, or inferior quality, from that indicated by the sample. And for a further and separate reply it is alleged that the clay which the defendant pretended to reject was accepted and taken by defendant to its manufacturing plant at Everett, Wash., and there stored by it, that the casks of clay pretended to be rejected were placed in the open, upon the river bank, without any shelter, and that the clay was exposed to the action of the rain and snow and the elements, and by reason thereof it deteriorated and became worthless and of no value, wherefore plaintiffs demand judgment as prayed in the complaint.

There was a trial respecting these issues before the court; a jury having been waived. The findings and judgment were for the defendant, and plaintiffs prosecute this writ of error therefrom. Other facts developed at the trial appear in the opinion of the court.

Williams, Wood & Linthicum, Isaac D. Hunt, and Peters & Powell, for plaintiffs in error.

J. A. Coleman, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON District Judge (after stating the facts as above).

The plaintiffs, to support the allegations of the complaint, offered the contract of sale in evidence, which, so far as it has relevancy here, is as follows:

'Portland, Oregon, October 15, 1906.

'Messrs. Everett Pulp & Paper Co., Everett, Wash.

'Bought of Meyer, Wilson & Co., 338 Sherlock Building.

'Terms: Net cash.

'Payable in U.S. gold coin as delivered.

'About three hundred (300) to four hundred (400) tons, of 2,240 1bs. each, China clay in casks, P.X.Y. brand at seventy cents (70 cts.) per 100 1bs. net invoice weight ex ship at Seattle, Wash.

'This sale is made for shipment per 'Mozambique' from Leith or Tyne (P.M.W. & Co., A.T.) to Seattle. Purchasers to take delivery of China clay from alongside vessel at once on discharge at Seattle, Wash.

'China clay at risk of purchasers as soon as landed.

'Wharfage, if any, at Seattle, Wash., to be for account of purchasers.'

The plaintiffs having rested, the defendant offered in evidence, and they were received over the objection of plaintiffs, two letters, one bearing date Portland, Or., September 29, 1906, written by Meyer, Wilson & Co. to the Everett Pulp & Paper Company, and the other bearing date October 11, 1906, written by the Everett Pulp & Paper Company to Alfred Tucker, who represented the plaintiffs. The former reads as follows:

'Dear Sirs: Referring to the correspondence we had heretofore with you regarding China clay, we now have the pleasure of advising you that we send you under separate cover a sample marked 'P.X.Y.' of an English China clay which the makers believe matches your own sample very well, and we trust that you will find it so. It is probable that we could work your order for a quantity of not less than 400 to 500 tons of this P.X.Y. China clay in one-half ton casks with extra iron hoops, which packages have in our previous shipments proved very satisfactory, indeed, at the price of 76 1/2 cents per 100 lbs. ex ship at Seattle; wharfage, if any, on the goods for buyers account, as usual. Will you kindly let us know whether you are inclined to place an order with us on this basis.'

The latter reads:

'Confirming the writer's telephonic communication to you today; please enter our order for 3/400 tons of P.X.Y. China clay, to be fully equal to the sample which you have submitted to us, at the price quoted by you, viz.: 70c per 100 lbs., ex ship at Seattle, duty paid.

'It is understood that this is to be packed in 5-cwt. casks reinforced with iron hoops, and is for November/December shipment.'

The first and third assignments of error are based upon the introduction of these letters, and they raise the question, not only as to the admissibility of such letters, but as to whether the contract sued on evidenced a sale by sample. It is insisted that the contract of sale is complete within itself, and that whatever correspondence took place previously between the parties relative to the purchase and sale of the clay has become merged into the contract, and therefore that the contract alone speaks of the transaction, and not the previous negotiations with respect thereto.

As a general rule, it is undoubtedly true that all prior negotiations, whether in writing or by parol, or partly in writing and partly by parol, looking to the consummation of a contract or agreement between parties,...