Schreiber v. Andrews

• Decision Date: 30 April 1900
• Docket Number: 1,306.
• Parties: SCHREIBER v. ANDREWS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

101 F. 763

SCHREIBER v. ANDREWS et al.

No. 1,306.

United States Court of Appeals, Eighth Circuit.

April 30, 1900

Samuel W. Moore (Gardiner Lathrop, Thomas H. Reynolds, Thomas R Morrow, and John M. Fox, on the brief), for plaintiff in error.

Edwin C. Meservey (Arba F. Pierce and Charles W. German, on the brief), for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

This case presents but one question, and that is whether the plaintiff in error, L. Schreiber, made a contract to sell and deliver to C. C. Andrews and C. G. Benton, the defendants in error, 15,000 bushels of No. 2 hard wheat, whose compliance with the contract in grade and weight was to be determined by an inspector and weighmaster at Kansas City, or a contract to sell and deliver out of a larger quantity to be shipped by him 15,000 bushels of No. 2 hard wheat which the inspector and weighmaster were to select out of the larger quantity and identify. If he made the former contract, the judgment below must be affirmed; if the latter, it must be reversed. It is conceded that the parties made a contract for the sale of wheat subject to an inspection and determination of its grade and weight at Kansas City. The question is whether that inspector was to determine how far the wheat complied with the contract, and thus to form a basis for the measure of damages for failure to comply with it, or was to select out of a larger quantity, and thus to identify the wheat sold and this question must be determined by the correspondence which constituted the contract, and by the acts of the parties under it. That correspondence, so far as it is material to this issue, ran in this way: On July 23, 1897 Schreiber telegraphed from Otis, Kan., to the defendants in error at Kansas City, 'Take fifty-eight net, fifteen thousand bushels two hard. ' On July 24th he telegraphed to them, 'If you can use it at fifty-seven, will sell,' and they answered: 'Accept your fifteen thousand 2 hard fifty-seven track Otis. Rush shipment. ' On the same day they wrote: 'We now have your wire offering 15,000 bushels two hard at 57 cents, your track, which we now confirm for fifteen-day shipment. * * * Please bill wheat to us here, making draft without exchange, leaving us fair margins;' and Schreiber wrote them: 'We expect you people to give us 10-15 days. But I believe we can mack it next week as we sheap 3 lagh cars Mondy morng. Now as you are stranzer to me in case some of the wheet sult file to graat I want you to notify me by wir as I hav Mr. E. D. Fisher & Com. to look after my biznes in K. C. so I will mack draft within 10.00 to $20.00 per car and if you want some refrance about me or Mr. Fisher and J. V. Brinkman Co. Bank at Gt. Bend as I du may bizness thru ther bank. ' On July 28, 1897, Schreiber commenced shipping the wheat. He took the bills of lading in his own name, indorsed them, and then forwarded them with drafts attached for the purchase price of the No. 2 hard wheat, and the defendants in error paid the drafts and took the bills of lading as fast as they were presented, and before the wheat for which they were respectively drawn was inspected. The first cars of wheat shipped graded No. 2 hard, but on July 31, 1897, a car arrived which graded No. 3 wheat, and thereupon the defendants in error notified Schreiber of the fact, and that they had applied it to the contract at 1 1/2 cents off. Schreiber shipped 21 cars. Seven of them graded No. 2 hard wheat and 14 of them graded No. 3 wheat. On August 2, 1897, all but two cars had been shipped, and the vendees had given notice of the grade of each carload as soon as it was inspected. On that day Schreiber telegraphed the defendants in error: 'Can't stand one-half off on car graded three. Turn them over to Fisher. ' The defendants in error refused to obey this instruction, and applied the wheat, which they had already paid for, on their contract. Schreiber then refused to complete the performance of his agreement. He had drawn, and the defendants in error had paid him, for more wheat than he had delivered. Thereupon the vendees sued him, and recovered $489.60 for overpayments, $166.95 for breach of warranty of the grade of the wheat, and $41.90 damages for his failure to fulfil the contract. The plaintiff in error presented a counterclaim for the conversion of the wheat which graded No. 3, but the court held that the wheat was no longer his after he had shipped it and received the purchase price of it, and that, consequently, there was no conversation of...