El Reno Wholesale Grocery Co. v. Stocking

• Decision Date: 16 June 1920
• Docket Number: No. 13169.,13169.
• Citation: 127 N.E. 642,293 Ill. 494
• Parties: EL RENO WHOLESALE GROCERY CO. v. STOCKING.
• Court: Illinois Supreme Court

293 Ill. 494

127 N.E. 642

EL RENO WHOLESALE GROCERY CO.

v.STOCKING.

No. 13169.

Supreme Court of Illinois.

June 16, 1920.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Ogle County; James S. Baume, Judge.

Action by the El Reno Wholesale Grocery Company against George E. Stocking. Judgment for plaintiff was reversed by the Appellate Court, and plaintiff brings certiorari.

Judgment of Appellate Court affirmed.Wirick & Wirick, of Rochelle, and Francis Bacon, of Oregon, Ill., for plaintiff in error.

J. C. Seyster, of Oregon, Ill., and Jeffery, Campbell & Clark, of Chicago (Charles V. Clark, of Chicago, of counsel), for defendant in error.

CARTER, J.

Plaintiff in error, the El Reno Wholesale Grocery Company, brought an action of assumpsit in the circuit court of Ogle county against defendant in error to recover damages for the alleged breach by him of a contract for the sale of certain canned corn. Defendant in error pleaded the general issue and also filed certain special pleas. A jury was waived, and trial had before the circuit judge, and judgment was entered for plaintiff in error in the sum of $1,922.25 for damages for failure to deliver said corn. On appeal to the Appellate Court for the Second District the judgment of the circuit court was reversed, with a finding of facts stating, among other things, that the record did not show that defendant in error was indebted to plaintiff in error. The cause was brought by petition for certiorari from the Appellate Court to this court.

In 1916 and 1917 George E. Stocking was engaged, under the trade-name of the George E. Stocking Canning Factory, at Rochelle, Ill., in the business of canning corn and other food products for the wholesale trade. At the same time the El Reno Wholesale Grocery Company, a corporation, was engaged in the wholesale grocery was engaged in the and Fred W. Heryer was engaged in the wholesale grocery brokerage business under the firm name of McManus-Heryer Brokerage Company, with offices at Kansas City, Mo., Oklahoma City, Okl., and elsewhere. The grocery company argued, and the evidence offered by it tends to show, that in October, 1916, said company entered into negotiations through said brokerage company, whereby Stocking was to sell and ship to the grocery company a certain amount of canned corn in 1917 at a certain price and that Stocking did not fill the alleged contract; that the price of corn became very much highee in 1917, and that the grocery company was greatly damaged by the failure to fill the contract. The only authority the broker had to make this sale and bind Stocking thereby is contained in a letter from Stocking to the broker dated September 28, 1916, which stated, among other things, that Stocking made a price of 75 cents for standard corn of the 1917 pack, and that the broker might sell 15,000 cases of standard corn at said price f. o. b. factory, Rochelle, Ill. Nothing is said in the letter as to the time of payment or the time of delvery. October 14, 1916, the broker prepared two memoranda, found in evidence as Exhibits I and J, which plaintiff in error insists are what is known in the brokerage business as ‘bought and sold notes,’ and which counsel for defendant in error argue are only mere sales memoranda. They were both addressed to Stocking, and Exhibit I says that the broker has confirmed sale to plaintiff in error of 2,000 cases of No. 2 standard corn at 75 cents, to be shipped the first half of September, 1917, ‘terms regular,’ f. o. b. factory, 60 per cent. delivery guaranteed, ‘as per wire to-day to seller.’ Exhibit I was mailed to defendant in error two days later. ExhibitJ was mailed to defendant in error October 14, and stated, among other things, ‘We have sold subject to confirmation.’ In other respects it was substantially like Exhibit I. On October 14 the broker also sent two telegrams to Stocking advising him of this sale and asking immediate confirmation. Upon receiving one of those telegrams defendant in error on October 14 wrote to the broker confirming generally the sale, but also included the statement, ‘Shipment to be made in September.’ The evidence shows that No. 2 standard corn was never packed at Rochelle until after September 15 of any year, and was never ready for shipment in the first half of that month. The word ‘packed’ seems to be used by canners with the same meaning as ‘canned.’

The evidence offered by defendant in error and not disputed showed that in the making of such contracts in the wholesale grocery business in the United States there was a general custom and usage in force in 1916, and for many years prior thereto, that when the sale of such goods is for future delivery the exchange of notes like Exhibits I and J is not understood to constitute a completed contract, but that, before any contract is understoodto be made a formal written contract will be prepared by the seller covering the entire details of the transaction, which will be submitted to the buyer, which he may or may not sign. The evidence also shows that each different shipper has his own form of printed contract on hand for such cases. There is in evidence, as Exhibit K, such a printed form prepared by Stocking for his use, and he testified that in all his experience in the canning business for wholesale delivery he had never made or known of a future sale carried out without a written contract signed by the parties. This printed form provided a number of details that are not referred to in any way in the so-called memoranda or sales notes prepared by the broker. The broker's testimony tends strongly to show that he expected and required a written contract and tried to get one in this case from defendant in error; that he talked with defendant in error at Cleveland in February, 1917, about having such a written contract, and Heryer testified that Stocking had agreed in that conversation to prepare and send such a contract. Stocking himself testified that in Cleveland he had a talk with Heryer with reference to the contract, but denied that he agreed to prepare and forward such a contract. Heryer also admitted that ordinarily in transactions of this kind a written contract (after the first negotiations) was prepared, including the details of the transaction, and signed later by the parties.

We think there can be no question from the evidence in this record that both the buyer and seller, as well as the broker, were well acquainted with this custom and usage with reference to sales memoranda, and understood that written contracts were afterwards prepared to incorporate all the details of the transaction. Heryer testified that he knew it had been defendant in error's custom to prepare triplicate contracts for trades of this kind; the broker to keep a copy on file, the buyer to have one, and the seller to have one, signed by both of the parties. On February 16,1917, the broker wrote a letter to defendant in error in which he referred to their conversation at Cleveland with reference to a written contract, stating that up to that time they had not received such a contract, and that plaintiff in error was making inquiries in regard to the same, and that they would greatly appreciate it if defendant in error would by return mail forward such a contract.

The Appellate Court, in reversing the judgment of the circuit court, incorporated as part of the judgment the following finding of facts:

‘We find from the evidence that the minds of plaintiff and defendant never met upon all the material terms of a contract between them, even under the bought and sold notes in evidence, and also that the negotiations between the parties were subject to the geneal usages and customs of the wholesale canning and grocery trade, and that it was the general usage and custom of the trade and the intention of these parties that a printed and written contract should be prepared and executed by them embodying agreements on various subjects not mentioned in said bought and sold notes, before the contract should be completed, and that such a contract was not executed, and that upon the evidence in this record defendant is not indebted to plaintiff.’

Counsel for plaintiff in error earnestly insist that this finding of the Appellate Court wa not a finding of fact, but a finding of law; that the contract upon which they based their action was created solely by letters, telegrams, and the bought and sold notes, and being wholly in writing, its interpretation is wholly a...