Sutton & Cummins v. Kiel Cheese & Butter Co.

• Decision Date: 23 October 1913
• Citation: 155 Ky. 465,159 S.W. 950
• Parties: SUTTON & CUMMINS v. KIEL CHEESE & BUTTER CO.
• Court: Kentucky Court of Appeals

159 S.W. 950

155 Ky. 465

SUTTON & CUMMINS v. KIEL CHEESE & BUTTER CO.

Court of Appeals of Kentucky.

October 23, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Sutton & Cummins against the Kiel Cheese & Butter Company in which defendant filed a counterclaim. Judgment dismissing the petition and counterclaim, and plaintiffs appeal. Affirmed.

Duffin Sapinsky & Duffin, of Louisville, for appellants.

William Krieger and Albert C. Dick, both of Louisville, for appellee.

CLAY J.

Plaintiffs E. S. Sutton and W. J. Cummins, partners doing business under the firm name of Sutton & Cummins, brought this action against defendant, Kiel Cheese & Butter Company, for violation of an alleged contract made with the defendant, by which it agreed to deliver to plaintiffs free on board cars at Kiel, Wis., during the month of October, 1907, 2,000 boxes of cheese of the brand known as "Daisies" at the price of 14 1/2 cents a pound. Defendant answered, and denied that it entered into the contract sued on, and in its second paragraph pleaded a setoff and counterclaim of $3,630. The jury returned a verdict, finding that neither plaintiffs nor defendant were entitled to any damages whatever, whereupon judgment was entered dismissing plaintiffs' petition and defendant's set-off and counterclaim. From that part of the judgment dismissing plaintiffs' petition, plaintiffs appeal.

At the time of the transactions complained of plaintiffs were merchandise brokers in Memphis, Tenn. Defendant was engaged in the manufacture of cheese at Kiel, Wis. On October 1, 1906, plaintiffs made application for defendant's account at Memphis, and asked the privilege of representing them at that point. Defendant replied that if plaintiff would give it exclusive representation in its line it would place its account in their hands. On October 5, 1906, plaintiff ordered by telegraph 100 cheeses of the Daisies variety, at the price of 13 cents. The telegram was followed by a letter asking that the cheese be shipped open. Defendant answered by wire, stating that it must ship some wholesale grocer or draft bill of lading attached. On the same day it wrote plaintiffs a letter, saying that they did not enjoy a commercial rating which would warrant its extending to them a line of credit. The letter also contains the statement: "We understood that you wished to represent us on a brokerage basis, and did not understand that you wished to buy goods direct." On October 8th plaintiffs wrote defendant a letter, wherein they stated: "Bradstreet gives us a rating of $300,000.00. This certainly should be sufficient rating to buy 50 boxes of cheese on." On October 10, 1906, defendant wrote plaintiffs that it was decidedly in the wrong in its recent letter. At the same time it shipped 50 boxes of cheese at the original price. On October 13th plaintiffs wrote defendant, stating that they accepted its apology, and asking it to enter their order for 50 additional boxes, to be shipped about two days after date of shipment of the first lot. They further stated in their letter that they were unable to make delivery of one lot of cheese to two buyers, for the reason that the rules of the railroad prohibited their doing so. On October 15, 1906, plaintiffs telegraphed defendant as follows: "Canale and Company offer twelve three quarters for two fifty daisies, answer." On October 15th defendant wrote plaintiffs in answer to their letter of the 13th, stating that they were shipping 50 boxes of Daisies, which they invoiced at 13 3/4¢ f. o. b. Kiel. On October 18, 1906, plaintiffs sent the following telegram to defendant: "Please ship us 50 boxes Daisies, full cream, 13 1/4¢ f. o. b. Kiel, Wis." On October 20, 1906, plaintiffs sent defendant a check for $143.82 in payment of invoice of October 10th. On October 22nd defendant acknowledged receipt of the remittance. On October 25, 1906, plaintiffs sent defendant a check for $144.57, covering invoice of October 15th. On October 30th plaintiffs wrote defendant that the 50 boxes of cheese shipped on October 22d checked short. On November 1, 1906, defendant wrote plaintiffs, stating that one-half pound to the box was not excessive shortage, but one and one-half pound was excessive. On November 5, 1906, plaintiffs sent defendant a check for $139.53 to cover invoice of October 22d. On November 7th defendant acknowledged receipt of the remittance.

The foregoing telegrams and correspondence were all preliminary to the making of the alleged contract on which this suit is predicated. That contract grows out of the following correspondence: On September 27, 1907, plaintiffs telegraphed defendant as follows: "Wire your lowest future price on Daisies." In reply they received the following telegram dated September 28th: "Daisies fourteen half September shipment, quarter advance monthly, telegraphic acceptance, market advancing, this price low." On the same day defendant wrote plaintiffs a letter setting forth the exchange of wires, and stating that the price of 14 1/2 cents on Daisies was very low, and should bring the business. On October 1, 1907, plaintiffs sent the following wire to defendant: "Telegram received, proposition accepted, two thousand boxes." On the same day defendant wrote plaintiffs a letter confirming the exchange of wires, and further stating that the price was the best it could do, and it advised plaintiffs' friends to buy, as the price was very low. On the same day plaintiffs wrote defendant, confirming the exchange of wires, and accepting their proposition. On October 2d defendant wrote plaintiffs, acknowledging receipt of telegram of October 1st, ordering the 2,000 boxes, and asked for mail advices as to who the purchaser was. On October 3, 1907, it again wrote plaintiffs, asking the name of the purchaser. On October 5th plaintiffs wrote defendant, saying that they themselves were the purchasers. On October 7th defendant wrote plaintiffs saying that they were surprised to learn that plaintiffs were the purchasers. The letter also contained the following statement: "We considered you as our brokers and are not making other prices to you and not in a position to close the contract under these circumstances. Our correspondence with you has been as brokers, as your letter head signified, and not as dealers." On October 9, 1907, plaintiffs acknowledged receipt of defendant's letter, declining to accept contract if ordered in their name. In this letter they...