Southern Product Company v. Franklin Coil Hoop Company

• Decision Date: 25 November 1914
• Docket Number: 22,496
• Citation: 106 N.E. 872,183 Ind. 123
• Parties: The Southern Product Company v. Franklin Coil Hoop Company
• Court: Indiana Supreme Court

106 N.E. 872

183 Ind. 123

The Southern Product Company v. Franklin Coil Hoop Company

No. 22,496

Supreme Court of Indiana

November 25, 1914

Rehearing Denied March 26, 1915.

From Superior Court of Marion County (80,899); Charles J. Orbison Judge.

Action by the Franklin Coil Hoop Company against the Southern Product Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Edgar A. Brown, James E. Kepperley and J. Olias Vanier, for appellant.

Wm Featherngill and Elmer E. Stevenson, for appellee.

OPINION

Morris, J.

Appellee, a corporation, sued appellant, a corporation, on account, for lumber sold and delivered. Trial by jury, verdict for appellee with answers to interrogatories; judgment on verdict. Appellant's motions for judgment on answers to interrogatories, and for a new trial, were overruled, and these rulings are assailed as erroneous. It is contended that the evidence was not sufficient, in law and fact, to support the verdict.

The complaint alleges that appellee sold to appellant, for an agreed price, two carloads of lumber, which were, at appellant's request, shipped to the West Farms Lumber Co., New York City. In determining the sufficiency of the evidence, this court is limited to a consideration of that most favorable to appellee, including such inferences favorable to appellee, as might be fairly drawn by the jury. Peabody-Alwert Coal Co. v. Yandell (1913), 179 Ind. 222, 100 N.E. 758. There was evidence to show that at, and for a long time prior to the time of the transaction in controversy, appellant, with its place of business at Indianapolis, and appellee, with its place of business at Franklin, were each engaged in buying and selling lumber in wholesale quantities. The two corporations had engaged in previous business dealings. H. C. Morris was employed by appellant in the capacity of sales manager, and prior to the sale here alleged, had represented appellant in sales of lumber to appellee. During the first half of April, 1908, Morris went to appellee's office at Franklin and endeavored to make a sale of pine lumber from appellant to appellee. The latter's president and manager, Mr. Graham, informed Morris that appellee would rather sell than buy lumber at that time, and, after further conversation, proposed a sale of two carloads of hardwood lumber, one at $ 25 and the other at $ 38 per thousand. Morris informed Graham that he was getting appellant to handle some hardwood lumber, and that appellant was paying him a commission for his services; that the price quoted by appellee was satisfactory and if appellant got an order for such lumber as appellee offered to sell, he would communicate with appellee. On April 16, 1908, appellant mailed to appellee the following letter:

"Indianapolis, Ind., 4/16/08.

Franklin Coil Hoop Co., Franklin, Ind.

Gentlemen--Will your Mr. Graham be kind enough to inform us whether he has disposed of any of the hardwood stock of which he gave our Mr. Morris a list. We rather expect an order from New York during the course of the next few days, which, if received, we can apply on such stock. Thanking you for an answer by return mail, we beg to remain,

Yours very truly, The Southern Product Co., HCM/MD

H. C. Morris."

By return mail appellee answered that it had disposed of 10,000 feet. In due course of mail appellee received the following letter:

"V. A. Longaker, Pres't.

D. S. Menasco, V. Pres't.

& Gen'l. Mgr.

C. B. Menasco, Sec'y.

The Southern Product Co. of Indianapolis, Ind.

Wholesale Lumber

New Phone No. 5588.

Bell Phone No. 2994.

General Offices, State Life Bldg.

Indianapolis, Ind., 4/25/08.

Franklin Coil Hoop Co., Franklin, Ind.

Dear Sirs--Referring to my call last Monday evening, beg to say that I have had the matter of the two cars of white oak up with my New York parties, and they inform me that it is satisfactory to let the stock come along, if it will run a fair average width, as is customary in Indiana plain white oak. You may, therefore, make the shipment to the West Farms Lumber Company at New York City, N.Y., and ask that you insert on B/L and way bill, 'Lighterage free within lighterage limits.' Please let me have the paper at once after shipment has been made.

Yours very truly, H. C. Morris."

On April 30, 1908, appellee loaded a car with lumber that had been offered at $ 25 per thousand, and shipped it to West Farms Lumber Co., New York City, N.Y. On the same day appellee mailed to appellant, an invoice for the same, which, excepting the following notation thereon, made by Morris, in his handwriting, viz., "Commission of $ 1.00 per M. to us from Coil Hoop Co." was as follows:

"Franklin, Ind., Apr. 30, 1908.

The Southern Product Co., Indianapolis, Ind.

In account with Franklin Coil Hoop Company.

M. C. 3693

Car No. 43293 10,078 ft. No. 1 Com. Plain W. O. & 25,251.95

West Farms Lbr. Co., New York City, N.Y.

Commission of $ 1.00 per M to us from Coil Hoop Co.

B/L Ford."

On the following day, another car was loaded with lumber quoted at $ 38, and shipped the same as the other, and invoice forwarded to appellant. When the invoice was received, Morris made the same notation thereon, that he made on the other. Appellant never challenged these invoices.

After the lumber had been shipped by appellee, it received the following letter:

"Indianapolis, Ind., April 28th, 1908.

Franklin Coiled Hoop Co., Franklin, Ind.

Dear Sirs--Referring to your conversation with our Mr. Bright by 'phone last evening, we beg to state that as the arrangement made by the writer, we will be very glad indeed to collect the account on the two cars of oak to be shipped to New York. When this order was first talked of, you made us an allowance of one dollar for commission. The writer explicitly stated that this was our commission. Now, one dollar per M. on the 1st and 2nds would mean but about 2 per cent., which is an inconsequential percentage on which to handle an account. It, therefore, was the writer's intent to turn the order over to you. Mr. Graham will undoubtedly recall our conversation relative to the financial standing of the concern who is to handle the lumber. How the writer said that he doubted whether the concern had a very heavy rating, but that he had done business with them individually for ten years and had always found them fair; and on Mr. Graham's remark that he had never done business so far away, the offer was made that if the invoices were forwarded to our office, we would look after and attend to the collecting of the account for you, and that our Mr. Morris would give the entire matter his personal attention, with the view of making the shipment a satisfactory one to you, to further an arrangement suggested whereby we could act as your selling agents or in buying the stock outright where there was sufficient profit to pay a reasonable amount on the money involved, on the balance of the stock you now had on hand.

We do not believe you need fear the financial responsibility of the West Farms Lumber Co. We now have several unfilled orders on our books for that concern, and, what is more to the point, we would not likely hand you an order which would involve us in unpleasantness with you, or affect the business we hope to do with you.

How about that

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