Savannah Sugar Refining Corporation v. Sanders

• Citation: 129 S.E. 607,190 N.C. 203
• Decision Date: 07 October 1925
• Docket Number: 101.
• Parties: SAVANNAH SUGAR REFINING CORPORATION v. SANDERS ET AL.
• Court: United States State Supreme Court of North Carolina

129 S.E. 607

190 N.C. 203

SAVANNAH SUGAR REFINING CORPORATION v. SANDERS ET AL.

No. 101.

Supreme Court of North Carolina

October 7, 1925

Appeal from Superior Court, Johnston County; Bond, Judge.

Action by the Savannah Sugar Refining Corporation against Mrs Lillian L. Sanders and others, executors of W. M. Sanders deceased. Judgment for plaintiff, and defendants appeal. No error.

Broker's circular and correspondence held to establish contract for purchase of sugar, independent of confirmatory telegram.

This action was originally instituted against W. M. Sanders, who has since died, and the executors of his estate have been duly made parties defendant.

Plaintiff through its broker, Lamborn & Co., of Savannah, Ga., claims that it sold W. M. Sanders 50 barrels of granulated sugar at 22 1/2 cents per pound, to be delivered in the fall of 1920 between October 15th and November 30th. This action is to recover $2,588.22 for damages for breach of contract. The defendants denied the contract, set up fraud, and also pleaded accord and satisfaction.

From Savannah, Ga., on July 7, 1920, Lamborn & Co., who W. M. Sanders had been dealing with before, sent a circular letter to Sanders, in which was stated:

"To the Trade: Subject to confirmation we offer for the account of the Savannah Sugar Refinery their standard fine granulated sugar on the basis of 22.50 less 2 per cent. for cash, f. o. b. Savannah Refinery, Port Wentworth, Ga., for shipment at seller's option between October 15 and November 30, 1920. Usual refiners' terms will govern, and sales will be covered by contracts signed by buyer and seller as a protection to each. * * *"

Then is set forth the market conditions and language calculated to induce the defendant and the trade to buy.

On these latter statements defendants set up false and fraudulent representations, etc. But this is not now material, as the issue of fraud was found in favor of plaintiff, and there is no exception to the charge of the court below on this issue. Then the circular states in what bulk the sugar can be shipped, but at the seller's option.

On July 12th, W. M. Sanders, writing from Smithfield, N. C., after mentioning a contract then being filled, heretofore made, says:

"Is your circular letter of the 7th still in force? I seemed to have overlooked your circular or it came only yesterday."

Lamborn & Co., on July 15, 1920, answers the letter in regard to the contract then in existence--this was a 26-cent contract, 100 barrels--and then writes:

"Relative to our circular letter of July 6th (7th), we are pleased to advise you that this circular is still in force, but unless you act quickly the possibilities are that we will not be able to confirm any of these sugars; therefore we urge that if you are interested that you wire us immediately upon receipt of this letter giving us a definite order."

On July 20, 1920, writing from Smithfield, N. C., in answer to Lamborn & Co.'s letter, W. M. Sanders says:

"Yours of 15th. I have misplaced the circular letter of July 6th (7th), but it is my recollection that you proposed to make shipment during the fall months, and the price was around 22 1/2 cents. If my memory is correct, you may bill me with 50 barrels."

There was a telegram, dated August 2, 1920, which it was contended by defendants was never received, and plaintiff never proved by competent evidence that it was sent, viz.:

"Bought fifty barrels fine granulated sugar basis twenty two one half less two per cent. fob Savannah Refinery shipment sellers option between October 15th and November 30th."

This telegram is immaterial from the view we take of the case. There are numerous letters on part of Lamborn & Co. holding Sanders to what they claim is the contract, and a contract sent Sanders for signature, which was never signed, although in the possession of Sanders. This contract is known as 423 and is, in substance, what is set forth in the circular letter, but in contract form between the parties.

On August 23, 1920, W. M. Sanders wrote Lamborn & Co.:

"Would you advise me to close out my contract sugar, in haste and with loss?"

On August 25, 1920, Lamborn & Co. answers, and says:

"It would be our suggestion that you meet reasonable competition. The situation is not in a very happy condition at the present time. * * *"

On August 27, 1920, W. M. Sanders writes Lamborn & Co.:

"Yours of the 27th, also your telegram of the 26th. Our tobacco market opens here on the 7th. If the sugar should arrive before the 15th of September I do not believe that it would be convenient for me to pay the draft. This refers to order 1254. Suppose you let the 34 barrels come out around the 10th Sept. In re to contract No. 423, I have no record of having made such a purchase."

On September 8, 1920, Lamborn & Co. write Sanders in regard to contract 1254, and then says:

"Relative to contract 423 that you mention in your letter of the 27th as having no record of being a party to, we wish to call your attention to the fact that this contract is between your good selves and the Savannah Sugar Refinery, being your purchase of 50 barrels at 22 1/2 cents per lb., less 2 per cent. for cash, f. o. b. Savannah Refinery, for shipment during October-November. Your definite order for these sugars was received in your letter of July 20th."

On September 11, 1920, Sanders writes to Lamborn & Co. about contract 1254, and says:

"In regard to sale 423, I have no record of having made such a purchase; neither did you submit a contract until August 11th. In the meantime I had made another purchase of sugar. I am sorry, but I cannot absorb that lot."

Then, on September 27, 1920, Lamborn & Co. writes Sanders, referring to letter of July 20, etc. Then on September 29, 1920, Sanders writes Lamborn & Co. as follows:

"I have your letter and telegram of yesterday. I cannot possibly absorb any more sugar now. The conditions here are distressing, and I could not pay for the sugar if ordered."

On October 8, 1920, Sanders writes Lamborn & Co.:

"Yours of the 6th. I will send check for shipment in next few days. Please make no further shipments. The decline in prices of cotton and tobacco has hit this section hard. I think every one should be willing to share in the heavy losses."

The other letters we do not think material. After notice to Sanders, the sugar was sold at a loss of $2,588.22, as of December 23, 1920.

The defendants, to substantiate the plea of accord and satisfaction, introduced in evidence the following check:

"Smithfield, N. C., Dec. 16, 1920.

Pay to the order of Savannah Sugar Refinery Co. $774.48, seven hundred and seventy-four and 48/100 dollars, for a/c and contracts in full to date.

W. M. Sanders.

To the Citizens' National Bank,

Smithfield N. C."

The check was duly indorsed by the treasurer of the Savannah Sugar Refining Corporation, and was paid. The entire record evidence shows that W. M. Sanders owed Lamborn & Co. on contract 1254, the balance being the exact amount of the check sent.

It was in evidence, on the part of the plaintiff:

"That in the summer of 1920, Lamborn & Co. has a toll contract with the Savannah Sugar Refining Corporation, by which the Savannah Sugar Refining Corporation got a toll on all raw sugars; that Lamborn & Co. sold 100 barrels of sugar to W. M. Sanders at Smithfield, and as the sugar was shipped out it was delivered by the Savannah Sugar Refining Corporation, because on the toll contract it was understood and agreed that the Savannah Sugar Refining Corporation would use its facilities for collecting for shipments which it made for Lamborn & Co. A rubber stamp was put on each invoice which Mr. Sanders got, and on each invoice which he received it was stated: 'Please make your remittances to the Savannah Sugar Refinery.' Therefore he would make the check payable to the Savannah Sugar Refining Corporation instead of Lamborn & Co. The invoice showed the number of the contract that the sugar was intended to cover. Sugar shipped under contract No. 1254 would be stamped on that contract, 'No. 1254,' so that the purchaser knew exactly what he was paying for when he remitted."

The issues submitted to the jury and their answers thereto were as follows:

"(1) Did the plaintiff agree to sell to defendant, and did defendant agree to buy of plaintiff, fifty (50) barrels of fine granulated sugar, at the price of twenty-two and one-half (22 1/2) cents per pound, less 2 per cent. on board cars at the Savannah Refinery, Port Wentworth, Ga., shipment to be made between October 15, 1920, and November 30, 1920, at the option of plaintiff, as alleged in the complaint? Answer: Yes.

(2) Was the contract of sale, if made, induced by the fraudulent representations of the plaintiff, as alleged by the defendant? Answer: No.

(3) Did the defendant wrongfully refuse to accept and pay for the sugar, as he had contracted and agreed to do? Answer: Yes.

(4) Has there been a settlement between plaintiff and defendant, as alleged in the answer? Answer: No.

(5) In what amount is defendant indebted to the plaintiff? Answer: $2,588.22, with interest from December 23, 1920."

Judgment was rendered on the verdict. Exception and assignment of error were made, and appeal to Supreme Court. Defendants made numerous exceptions and assignments of error to the admission of testimony and charge of the court; the refusal of the court to allow the defendants a judgment as of nonsuit at the close of plaintiff's evidence and at the close of all the evidence.

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