Small Co v. Lamborn Co, No. 100

CourtUnited States Supreme Court
Writing for the CourtVAN DEVANTER
Citation69 L.Ed. 597,45 S.Ct. 300,267 U.S. 248
Docket NumberNo. 100
Decision Date02 March 1925
PartiesA. B. SMALL CO. v. LAMBORN & CO

267 U.S. 248
45 S.Ct. 300
69 L.Ed. 597
A. B. SMALL CO.

v.

LAMBORN & CO.

No. 100.
Argued Oct. 21, 22, 1924.
Decided March 2, 1925.

Page 249

Messrs. Edgar Watkins, Mac Asbill, Horace Russell, and Frederick T. Saussy, all of Atlanta, Ga., for plaintiff in error.

Mr. Orville A. Park, of Macon, Ga., for defendant in error.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

On April 30 and May 7, 1920, the parties to this case entered into contracts for the sale by one and purchase by the other of 450 barrels of refined sugar, to be shipped by the seller from a refinery at Port Wentworth, Ga., to the buyer at Macon, in the same state, between July 15 and October 1. Late in July 150 barrels were shipped, accepted and paid for. About that time the market price began to decline and continued downward for the rest of the year. Late in August the seller shipped 150 barrels more, but when it reached Macon the buyer refused to accept it, suggested that it be stored 'for the benefit of whom it may concern,' which was done, and notified the seller that any further shipment would be similarly refused. Correspondence followed in which the seller sought to persuade the buyer to adhere to the contracts. Late in September, before the expiration of the time for completing delivery, the seller notified the buyer that, if

Page 250

the refusal to conform to the contracts was continued, the remaining 300 barrels, which included the 150 stored at Macon, would be resold for the account of the buyer and the latter would be held for the difference between the contract price and what was realized on the resale. The buyer persisted in the refusal and the sugar was resold.

This action was brought by the seller to recover from the buyer the difference between the contract price and the amount obtained on the resale. In the District Court a verdict and judgment were given to the seller; and the buyer brought the case here on direct writ of error, a constitutional question being involved.

One defense interposed by the answer was that the contracts were wanting in mutuality and therefore void. A demurrer to the defense was sustained, and this is assigned as error. Two clauses in the contracts are cited as making delivery optional with the seller, and therefore showing a want of mutuality. But in our opinion the clauses are not open to that construction. The contracts, signed by both parties, evidenced an agreement by the seller to deliver the sugar within a designated period at a fixed price, as well as an agreement by the buyer to take the sugar and to pay the price. They contemplated that the buyer might be accorded the privilege of calling for special deliveries, known as 'withdrawals,' during the prescribed period, if the seller was in a position reasonably to make them. And they contained alternative 'terms' of payment—'Cash before delivery less 2%, or cash in seven days less 2%.' The clauses in question then followed. One was, 'Terms and withdrawal subject to the approval of the seller's credit department.' Read in the light of established practices in the sugar trade, this clause meant that, when a shipment was made, the seller's credit department was to elect which of the alternative terms of payment should apply, and also that, if the buyer called for special deliveries, known as 'with drawals,'

Page 251

that department was to determine whether such deliveries reasonably could be made and was to approve or disapprove them accordingly. The clause was essentially subsidiary and entirely consistent with the seller's definite agreement to make delivery within the period prescribed. The other clause was to the effect that, 'if the supply of raw material of the refinery manufacturing the sugar' should be interrupted by war conditions, embargoes, strikes or other like cause, and if delivery was thereby prevented, the seller should 'not be responsible.' There is nothing in this clause which affords any basis for saying that delivery was to be optional with the seller. On the contrary, it recognizes that he was obligating himself to make delivery. Its evident and only purpose was to relieve him from liability in the event that performance of the obligation was prevented by particular circumstances, in their nature beyond his control. It is idle to suggest, as was done in argument, that the clause would permit him to avoid delivery by merely selecting a refinery which by reason of war conditions, embargoes or strikes was already cut off from a supply of raw material. That would not be within either the letter or the spirit of the clause, but would be a palpable fraud and unavailing. Slater v. Savannah Sugar Refining Corporation, 28 Ga. App. 280, 284, 110 S. E. 759.

The answer set up a special defense based on...

To continue reading

Request your trial
158 practice notes
  • New Orleans & N.E. R. Co. v. Benson, 33160
    • United States
    • Mississippi Supreme Court
    • October 10, 1938
    ...Co. v. Taylor, 178 Miss. 143, 172 So. 756, 174 Miss. 358, 164 So. 3; Y. & M. V. R. Co. v. Lamensdorf, 178 So. 80; Small Co. v. Lambourn, 267 U.S. 248, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720. Plaintiff below failed to show that any member of the switching crew had knowled......
  • Howard v. Mobile & Ohio Railroad Co., No. 32092.
    • United States
    • United States State Supreme Court of Missouri
    • June 12, 1934
    ...Ct. 202; A.T. & S.F. Railroad Co. v. Toops, 281 U.S. 351, 50 Sup. Ct. 281; Small Co. v. Lamborn & Co., 267 U.S. 250, 45 Sup. Ct. 300, 69 L. Ed. 597; Railroad Co. v. Chamberlain, 288 U.S. 333, 53 Sup. Ct. 391; Patton v. Railroad Co., 179 U.S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Martin v. Ra......
  • Brock v. Railroad Co., No. 29997.
    • United States
    • United States State Supreme Court of Missouri
    • June 13, 1932
    ...275 U.S. 455, 72 L. Ed. 370; Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Small v. Lamborn & Co., 267 U.S. 250, 69 L. Ed. 597; M.C. Ry. Co. v. Timmerman, 24 Fed. (2d) 23; Lehigh Valley v. Mangan, 278 Fed. 88; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 Sup.......
  • Armstrong v. Mobile & Ohio Railroad Co., No. 30308.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...v. Toops, 281 U.S. 351, 50 Sup. Ct. 281; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L. Ed. 370; Samuel v. Lamborn & Co., 267 U.S. 250, 69 L. Ed. 597; Southern Railroad Co. v. Walters, 52 Sup. Ct. 58. (5) Plaintiff's Instruction 1 is fatally erroneous in submitting as a ground of liability......
  • Request a trial to view additional results
158 cases
  • New Orleans & N.E. R. Co. v. Benson, 33160
    • United States
    • Mississippi Supreme Court
    • October 10, 1938
    ...Co. v. Taylor, 178 Miss. 143, 172 So. 756, 174 Miss. 358, 164 So. 3; Y. & M. V. R. Co. v. Lamensdorf, 178 So. 80; Small Co. v. Lambourn, 267 U.S. 248, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720. Plaintiff below failed to show that any member of the switching crew had knowled......
  • Howard v. Mobile & Ohio Railroad Co., No. 32092.
    • United States
    • United States State Supreme Court of Missouri
    • June 12, 1934
    ...Ct. 202; A.T. & S.F. Railroad Co. v. Toops, 281 U.S. 351, 50 Sup. Ct. 281; Small Co. v. Lamborn & Co., 267 U.S. 250, 45 Sup. Ct. 300, 69 L. Ed. 597; Railroad Co. v. Chamberlain, 288 U.S. 333, 53 Sup. Ct. 391; Patton v. Railroad Co., 179 U.S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Martin v. Ra......
  • Brock v. Railroad Co., No. 29997.
    • United States
    • United States State Supreme Court of Missouri
    • June 13, 1932
    ...275 U.S. 455, 72 L. Ed. 370; Chesapeake & Ohio Railroad Co. v. Nixon, 271 U.S. 218, 70 L. Ed. 914; Small v. Lamborn & Co., 267 U.S. 250, 69 L. Ed. 597; M.C. Ry. Co. v. Timmerman, 24 Fed. (2d) 23; Lehigh Valley v. Mangan, 278 Fed. 88; Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 Sup.......
  • Armstrong v. Mobile & Ohio Railroad Co., No. 30308.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1932
    ...v. Toops, 281 U.S. 351, 50 Sup. Ct. 281; Gulf Railroad Co. v. Wells, 275 U.S. 455, 72 L. Ed. 370; Samuel v. Lamborn & Co., 267 U.S. 250, 69 L. Ed. 597; Southern Railroad Co. v. Walters, 52 Sup. Ct. 58. (5) Plaintiff's Instruction 1 is fatally erroneous in submitting as a ground of liability......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT