Strong v. Ringle

• Decision Date: 06 November 1915
• Docket Number: 19,690
• Citation: 152 P. 631,96 Kan. 573
• Court: Kansas Supreme Court
• Parties: B. STRONG, Doing Business as the B. Strong Grain & Coal Company, Appellant, v. G. W. RINGLE, Appellee

152 P. 631

96 Kan. 573

B. STRONG, Doing Business as the B. Strong Grain & Coal Company, Appellant, v. G. W. RINGLE, Appellee

No. 19,690

Supreme Court of Kansas

November 6, 1915

Decided July, 1915.

Appeal from Coffey district court; WILLIAM C. HARRIS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Purchase of Grain--When Usage or Custom Governs Formation of Contract. When parties have undertaken to conclude a contract, the formation of which is governed by general usage, the implication is they intended to proceed according to the usage, if nothing be said to the contrary.

2. SAME. The foregoing rule applied to a general custom in the grain business to verify the result of oral negotiations conducted by means of the telephone by written confirmation.

L. H. Hannen, of Burlington, R. M. Hamer, and H. E. Ganse, both of Emporia, for the appellant.

Joe Rolston, of Burlington, G. H. Lamb, and W. E. Hogueland, both of Yates Center, for the appellee.

OPINION

BURCH, J.

The action was one to recover overpayments made on purchases of wheat. The plaintiff recovered a portion only of the amount claimed and appeals. Several similar transactions were involved and a consideration of one disposes of all.

On July 12, 1912, the plaintiff's agent at Coffeyville had a telephone conversation with the defendant at Leroy, the result of which was the purchase by the plaintiff from the defendant of two cars of wheat, to be billed according to instructions, the ultimate destination of the wheat, however, being St. Louis, Mo., or East St. Louis, Ill. Pursuant to a general custom in the grain business, with which the defendant was familiar, the plaintiff, on July 12, sent the defendant a written confirmation of the purchase, the material portions of which read as follows:

"PURCHASE CONTRACT.

6971

COFFEYVILLE, Kans.,....July 12th....1912.

G. W. Ringle,

Leroy, Kansas.

Gentlemen:--This confirms purchase from you today by telephone as follows:

Two 60000# cars # 2 red wheat, market differences for lower grades date of inspection, basis of 91 1/2c per bus. F. O. B. Leroy, Kansas. Station Mo. P. track. Shipment on or before July 20th 1912 destination official weights destination official grades.

Billing instructions: S/O notify B. Strong Grain & Coal Co., St. Louis, Mo."

A printed form of confirmation was used, the blanks of which were filled with typewriting. The printed portion is indicated by italics.

The defendant received the confirmation the following day, read it, retained it without objection, and subsequently shipped grain according to the billing instructions given. The custom required the defendant on receipt of the confirmation to object to its terms if they were not correct and to notify the plaintiff he would not ship on such terms. At the time of shipment drafts were drawn on the plaintiff for the price of the grain, leaving a small margin for difference between invoice and destination weights, which drafts the plaintiff paid. The wheat did not grade No. 2 red on official inspection at St. Louis, and the plaintiff sued for the market difference for the lower grade at the date of inspection.

At the time of the trial, in April, 1914, the plaintiff's agent had no clear recollection of the transaction independent of his office records and the custom of the business. The defendant, however, undertook to state in detail the very words used in the telephone conversation, and testified in substance that he expressly refused to sell on the basis of St. Louis official grades, whereupon the plaintiff's agent agreed to accept the wheat which the defendant was offering. The court instructed the jury that "custom can not make a contract," and that if a complete oral contract were made by means of the telephone conversation the defendant was not bound to reject the confirmation or advise the plaintiff that shipment would not be made pursuant to it, and the only material feature of the confirmation was the billing instructions. The jury found specially the existence of the custom and the facts making it applicable to the transaction, but found the telephone conversation to have been as the defendant stated it. The verdict was for the small sum admitted to be due the plaintiff, and judgment was rendered accordingly.

The portion of the instruction quoted above was doubtless suggested by a statement occurring in the syllabus and the opinion in the case of McSherry v. Blanchfield, 68 Kan. 310, 75 P. 121. The defendant's brief makes this court say, "usage or custom cannot make a contract when the parties themselves have made one." The language of the court was, "usage or custom cannot make a contract when the parties themselves have made none." (p. 312.) It...