St. Louis Paper-Box Co. v. J.C. Hubinger Bros. Co.

• Decision Date: 23 February 1900
• Docket Number: 1,304.
• Parties: ST. LOUIS PAPER-BOX CO. v. J. C. HUBINGER BROS CO.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 595

ST. LOUIS PAPER-BOX CO. v. J. C. HUBINGER BROS CO.

No. 1,304.

United States Court of Appeals, Eighth Circuit.

February 23, 1900

The St Louis Paper-Box Company, the plaintiff in error, is a Missouri corporation engaged in the business of manufacturing cartons. The J. C. Hubinger Bros. Company, the defendant in error, is an Iowa corporation engaged in the manufacture of starch, at Keokuk, in that state. The starch is put up for sale in cartons. The parties entered into the following contract:

'St Louis, Mo., January 12, 1897.

'J. C. Hubinger Brothers Company, Keokuk, Iowa-- Gentlemen: We will furnish you with three (3) millions of large starch cartons and two (2) millions of the medium size, as per signed samples herewith attached, at $1.65 and $1.33 per M., respectively. Printed in black and good red ink, as per signed samples, and on the same quality of stock as per samples. The color of stock to be as near the color of stock in samples as possible; that is, will be within the range of colors as per 'color' samples we herewith attach. These prices are f.o.b. St. Louis, Mo. We to have thirty days' notice before starting to ship. Delivery of the above quantity to be made in twelve months, or sooner, if you so desire, but not to exceed 700 M. cartons per month.

'Terms: Thirty days, or 2% off for cash in ten days from date of shipment. No charge for carting, packing, or cartage.

'It is our intention to supply you with such goods that you will have no cause to complain of. In case, however, you should receive some that are not up to samples herewith attached, you to return same to us, and we will replace them.

'Respectfully, St. Louis Paper-Box Company, 'Per Oscar H. Vieths, Pres.' 'Keokuk, Jan.

'Accepted: J. C. Hubinger Bros. Co.,

'By J. C. Hubinger, Prest.'

The St. Louis Paper-Box Company brought suit in the court below against the J. C. Hubinger Bros. Company to recover damages for an alleged breach of this contract, averring in its complaint: 'That, in compliance with said contract, and relying upon same, plaintiff did, at large expense and labor, undertake said work of supplying the boxes or cartons as by the terms and conditions of the contract required, and did manufacture under said contract, and in accordance with the terms thereof of the sale and purchase by defendant, a large quantity of same, but the defendant, in utter disregard of its contract, and the terms and conditions thereof, refused to receive said boxes or cartons, and declined to pay for same, or carry out the terms of said contract, although plaintiff, in fulfillment of its contract, shipped large quantities to defendant under said contract.'

For answer the defendant alleged, in substance: That the plaintiff was the first to commit a breach of the contract. That the first shipment of cartons, numbering about 54,000, were not up to the sample. That the paper out of which they were made was inferior, and their construction so imperfect and defective as to render them worthless for starch cartons. That defendant at once notified the plaintiff of this fact by letter, of which the following is a copy:

'Keokuk, Iowa, April 24th, 1897.

'St. Louis Paper-Box Co., St. Louis, Mo.-- Gentlemen: We confirm our message of to-day, reading as follows: 'Boxes are not satisfactory. Countermand order.' We find, upon investigation, that the boxes you shipped us are not fit to use, and you had better send one of your men here at your own expense to look after the matter. We have neither the time nor money to waste on the goods you have sent us. It is very strange that your men should use such poor judgment in material and work as you have done on our boxes. The contract calls for first-class work and material, and, if you cannot stand up to the agreement, we do not want your boxes, or anything to do with your firm. Kindly investigate this matter, and oblige,

'Yours truly, J. C. Hubinger Bros. Co.'

That an agent of the plaintiff visited Keokuk, when the defendant offered to ship the worthless cartons back to the plaintiff, and let them be replaced by cartons such as the contract called for, but that the plaintiff claimed the cartons it had shipped in material and construction were such as the contract called for, and refused to take them back, and thereupon the defendant notified the plaintiff the cartons would be stored subject to its order, and that the contract was canceled. The jury found the issues in favor of the defendant, and there was judgment accordingly, whereupon the plaintiff sued out this writ of error.

Hiram J. Grover and A. J. McCrary, for plaintiff in error.

John E. Craig and James C. Davis, for defendant in error.

Before CALDWELL and THAYER, Circuit Judges, and ROGERS, District Judge.

CALDWELL Circuit Judge, after stating the case as above, .

The gravamen of the complaint was that the plaintiff, in compliance with the contract, manufactured a large quantity of cartons, and shipped them to the defendant, 'but the defendant, in utter disregard of its contract and the terms and conditions thereof, refused to receive' them. The answer denied that the cartons complied with the contract and averred that they 'were absolutely worthless,' and could not be used; and that the defendant offered to return them, and the plaintiff refused to receive them, whereupon the defendant notified the plaintiff they were in its storehouse, subject to the plaintiff's order. In a word, the plaintiff claimed the cartons shipped complied with the contract, and that the defendant was bound to retain and pay for them. On the other hand, the defendant claimed they did not comply with the contract, and that it was not bound to retain and pay for them. This was the sharply-defined issue,-- the storm center in the case. When the plaintiff insisted the cartons complied with the contract, and declared it would not receive them back, the defendant was justified, if they did not comply with the contract, in storing them as it did, subject to the plaintiff's order. The defendant was not required to ship the cartons back to the plaintiff in the face of its declaration that it would not receive them. Moreover, the contract did not require the defendant to return a shipment of boxes the whole or greater part of which were defective. And, if the plaintiff claimed the shipment of cartons complied with the contract, and a large part of them were defective, and fell below the contract standard, the defendant had a right to cancel the contract, and store the cartons subject to the plaintiff's order. When it was developed that there was an irreconcilable difference between the...