Sterling Cork & Seal Co. v. Ph. Kling Brewing Co., 86

• Decision Date: 06 October 1924
• Docket Number: No. 86,June Term.,86
• Citation: 200 N.W. 142,228 Mich. 566
• Parties: STERLING CORK & SEAL CO. v. PH. KLING BREWING CO.
• Court: Michigan Supreme Court

228 Mich. 566

200 N.W. 142

STERLING CORK & SEAL CO.

v.PH. KLING BREWING CO.

No. 86, June Term.

Supreme Court of Michigan.

Oct. 6, 1924.

Error to Circuit Court, Wayne County; Harry J. Dingeman, Judge.

Action by the Sterling Cork & Seal Company against the Ph. Kling Brewing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.E. W. Mulford, of Detroit, for appellant.

Lucking, Helfman, Lucking & Hanlon, of Detroit, for appellee.

STEERE, J.

The Sterling Cork & Seal Company is a corporation of Toledo, Ohio, engaged in the manufacture of ‘crowns' or caps for sealing bottles.

In 1917, and for years before, the Ph. Kling Brewing Company was a corporation lawfully engaged in the brewing business at Detroit, Mich., and required large quantities of crowns for its bottled goods, a portion of which it had purchased from plaintiff for several years.

This action was brought by plaintiff to recover an unpaid balance, amounting, with interest, to $1,778.55, for crowns it had sold and shipped to defendant during the year 1917. Defendant admitted that the balance claimed due at the contract price for crowns it had received from plaintiff during that year was correct, but set up in its special notice under a plea of the general issue, and contended upon the trial, that it has sustained damages amounting to $1,620 in excess of the admitted balance, through plaintiff's breach of their contract, by refusing to furnish the quantity of crowns contracted for, which necessitated defendant buying them in the open market at a much higher price.

Both parties asked for a directed verdict, without reservation or contingent requests, thereby removing from the case any question of issues of fact for the jury. City National Bank v. Price's Estate, 225 Mich. 200, 196 N. W. 429. The trial court held that, under the terms of their contract, defendant had failed to established its counterclaim for damages, and directed a verdict for plaintiff for its admitted balance of $1,778.55, entering judgment therefor.

The contract out of which this litigation arose is evidenced by the following order of defendant and plaintiff's letter of acceptance:

‘Order Blank.

No. 989.

‘Ph. Kling Brewing Company,

‘Detroit, Mich., U. S. A.

‘Date, April 6, 1917.

‘Sterling Cork & Seal Co., Toledo, Ohio: Kindly enter our order for 25,000 gross, lacquered on both sides, embossed, composition, paraffined crowns, quantity as before. 10,000 gross to be shipped between now and May 1st. 15,000 gross in car May 10th. Price, 18 1/2 per gross, f. o. b. Toledo. (If 100,000 or more are used during the season, price is to be 18c per gross. This quantity to be billed at the same price or credit issued for the difference). And charge to account of

‘Ph. Kling Brewing Co.,

‘Per Kling.

‘Positively no goods to be delivered except on presentation of order. Please attach duplicate order to your invoice.

‘April 7, 1917.

‘Ph. Kling Brewing Co., Detroit, Mich.-Gentlemen: In reference to our telephone conversation this morning with Mr. Kling, regarding your order No. 989 of April 3d for 25,000 gross lacquered on both sides, embossed, composition, paraffined crowns, 10,000 gross to be shipped on or before May 1st via the White Star Line and 15,000 gross on May 10th in one shipment via the D. U. R., price on above to be 18 1/2c per gross, f. o. b. Toledo, with the privilege of increasing the above order during 1917 to 100,000 gross or more at 18c per gross on the whole amount, beg to confirm our acceptance of same. It is also understood that the numbers on the crowns are to be eliminated on this and future orders. We inclose herewith credit memorandum for $188.23, representing freight charges on crowns from Jan. 20, 1916, to March 30, 1917, which we have placed to your credit; also statement of your account to date as requested in your letter of the 4th. Thanking your very kindly for this order, which we assure you will be given our careful attention, and also for all part orders, we beg to remain,

Very truly yours,

‘The Sterling Cork & Seal Co.,

‘W. H. Miner, Secretary-Treasurer.’

Subsequent events were fairly summarized by the court in directing a verdict as follows:

‘Twenty-five thousand gross of these crowns were shipped to defendant some time during May, and no further correspondence was had between the parties until July 11, 1917, when defendant wrote plaintiff: ‘Your Mr. Stalder was in our office some time ago and asked us to let you know when we would be in a position to give you shipping instructions for the balance of crowns on order No. 989 of April 3d. Of this order there were 25,000 gross shipped, leaving a balance due of 75,000 gross. We have carefully checked over our stock and you may prepare 20,000 gross of embossed, and 5,000 gross of plain, lacquered on both sides. We are not in a very great hurry for this shipment, and if it would come forward to us the early part of August this would be satisfactory. We are unable at this time to give you shipping instructions for the balance. * * *’'

‘On July 16, 1917, the plaintiff responded to this letter in part as follows: ‘Our records conform with yours in that we still have a balance of 75,000 gross coming on the above order.’

‘On August 15, 1917, the plaintiff wrote defendant in effect that they were sending via White Star Line 16 bbls. of crowns which they made up for the defendant for some time. No further correspondence was had between the parties until December 10, 1917, when defendant wrote plaintiff as follows: ‘Referring to our order of April 3, 1917, our books indicate that we still have 56,000 gross of lacquered and embossed crowns still coming, and 4,000 gross of plain lacquered still coming. Will you kindly advise us when the next shipment will go forward?’

‘Replying to this letter, plaintiff, on December 11, 1917, responded in part as follows: ‘Your order No. 989 of April 3d calls for 25,000 gross, lacquered on both sides, embossed, composition paraffine crowns at 18 1/2 cents per gross f. o. b. Toledo, with the provision that if 100,000 or more are used during the season the price is to be 18 cents per gross. * * * The evident intent of this order is that we are to furnish you with what crowns you use up to 100,000 gross per your shipping instructions. We will therefore not make shipments on this order beyond the quantity you will actually use during 1917, in addition to the shipment going forward this week. In doing this, we are complying with the terms of this order.’

‘On December 20, 1917, the defendant wrote plaintiff: ‘We have your letter of December 11, advising that you still have 4,000 gross of lacquered and 1,000 gross of lacquered and embossed crowns that you are preparing for us and that they will be shipped this week. Up to the present time we have no advice that they have been shipped. We are in urgent need of crowns at this time, and would require that if they have already been shipped that you may trace from your end. You may prepare 15,000 gross of lacquered and embossed crown (s) the same as before, and 10,000 gross of lacquered crowns the same as before, and ship to us before the 1st of January, 1918. We are running very light on crowns now, and...