Tex-O-Kan Flour Mills Co. v. Nord

• Decision Date: 15 May 1944
• Docket Number: 18041.
• Citation: 18 So.2d 50
• Court: Court of Appeal of Louisiana — District of US
• Parties: TEX-O-KAN FLOUR MILLS CO. v. NORD.

18 So.2d 50

TEX-O-KAN FLOUR MILLS CO. v. NORD.

No. 18041.

Court of Appeal of Louisiana, Orleans.

May 15, 1944

Rehearing Denied May 29, 1944.

Titche & Titche and Bernard Titche, Jr., all of New Orleans, for plaintiff-appellant.

Charles I. Denechaud, Jr., of New Orleans, curator-ad-hoc, for defendant-appellee.

McCALEB Judge.

Plaintiff Tex-O-Kan Flour Mills Company, a Delaware corporation brought this suit against the defendant, Guy N. F. Nord, a resident of Belize, British Honduras, to recover the sum of $1217.58 representing the purchase price, including freight charges, etc., of 300 jutes of flour which it avers was sold and delivered to the defendant in accordance with his order. Upon alleging in its petition that defendant was a nonresident and that the Whitney National Bank of New Orleans was indebted to him, plaintiff secured the issuance of a writ of attachment of funds belonging to the defendant which were on deposit with the Bank.

The absent defendant, appearing through a curator-ad-hoc who had been appointed by the court to represent him. resisted plaintiff's demand on the ground that the flour which had been delivered under the contract was sour and musty and hence, unfit for the purpose for which it was purchased. After a hearing in the lower court, there was judgment in favor of defendant dismissing the suit. Plaintiff has appealed from the adverse decision.

We find the facts of the case to be as follows: Plaintiff corporation is the owner and operator of several flour mills which are located in Texas, Oklahoma and Kansas. One of these mills is Burris Mill & Elevator Company of Dallas, Texas, which manufactures a brand of flour called "Cinco Rosas". The defendant is a commission merchant dealing in flour and other commodities at Belize, British Honduras.

On May 16, 1941, defendant ordered from plaintiff, by wireless telegraph, 700 jutes of "Cinco Rosas" flour. This order was accepted by the plaintiff by reply cable, which stipulated a price of $3.30 per jute and terms of shipment F. A. S. Mobile Alabama. In accordance with this contract, 400 jutes of flour were shipped by plaintiff and received by defendant. This shipment was paid for and there is no controversy over it.

On July 24, 1941, defendant radioed plaintiff as follows: "Ship promptly via New Orleans balance 300 jutes * * *." And, on the same day, defendant wrote plaintiff, via airmail, stating: "I confirm my radiogram to you on this morning requesting prompt shipment of the balance of 300 jutes CINCO ROSAS still pending against contract No. 7458. There is a sailing of the United Fruit Company's line from New Orleans, La. on the 2nd Aug. and I hope you will have ample time to get the shipment down to New Orleans to catch that sailing. If not please route the shipment instead to Mobile, Alabama in care of the Van Henegan Co. of that city as before. If at all possible, however, would like the shipment by the United Fruit Company's sailing on the 2nd because I will be short of flour if shipment cannot be effected by that opportunity."

Conformably with the foregoing instructions, plaintiff undertook, on July 30, 1941, to ship the flour from a mill owned by it in Galveston, Texas, to New Orleans. The flour was delivered at Galveston to the Gulf, Colorado & Santa Fe Railway Company and was consigned to A. E. Hegewisch, Inc., plaintiff's forwarding agent in New Orleans. Upon its receipt of the inland bill of lading from plaintiff, A. E. Hegewisch, Inc., delivered it to United Fruit Company at New Orleans and secured from that company another bill of lading, dated August 1, 1941, wherein it was stated that the flour was received in apparent good order and that it was being shipped by plaintiff, via the vessel Lysefjord (which was expected to sail on August 2, 1941), to defendant at Belize, British Honduras. At the time A. E. Hegewisch, Inc., obtained this bill of lading from United Fruit Company, the flour was still in transit on the railroad and reached New Orleans on the following morning, August 2d, over the lines of the Illinois Central Railroad. Upon its arrival the Illinois Central Railroad immediately notified the office of A. E. Hegewisch, Inc., but apparently, through error or inadvertance in that office, no effort was made to have the flour brought to the dock of United Fruit Company so that it could be loaded on the steamer Lysefjord which sailed on August 2d at 3:20 P.M. It is also evident, from a notation contained on the bill of lading issued by United Fruit Company, that Mr. Hegewisch, who was handling the transaction for plaintiff, was under the impression that the flour would arrive in New Orleans over the line of the Texas & N. O. Railroad, whereas the freight car containing it was routed over the lines of the Illinois Central. This fact is confirmed by the testimony of Mr. C. J. Sheppard of the Illinois Central Railroad, who stated that he was waiting for an order from the consignee, A. E. Hegewisch, Inc., and that the latter mailed, through mistake, the delivery order to the T. & N. O. Railroad. This witness also says that the order to deliver the freight car to United Fruit Company docks was finally given to him on August 6, 1941 at 10:00 P.M.; that, when he received it, he communicated with the Public Belt Railroad and that the flour was delivered to the United Fruit Company by the Public Belt Railroad on August 7th at 11 o'clock A.M. The flour thereafter remained on the docks of United Fruit Company until August 16, 1941, when it was loaded upon the vessel "Baja California" in compliance with another bill of lading issued by the United Fruit Company on August 16th to replace the one dated August 1st and which contains the notation "to fill shortage ex S/S Lysefjord 8-2-41 B/L No. 4".

The "Baja California" reached Belize on August 22, 1941 and the flour was evidently received by the defendant on the following day. We say "evidently received" because the record shows that defendant wrote to plaintiff on August 22d notifying it that the flour had arrived that morning on the S/S "Baja California"; that he had not been able "to pass the customhouse entries through"; that he could not obtain exchange in time for the outgoing mail as the bank would not issue an exchange without presentation of the customhouse entry and that, therefore, he would mail his remittance for the purchase price of the flour on the following Monday. In his deposition, defendant states that he inspected the flour at the customs landing shed at Belize on August 23d; that "there were no outward signs on the bags to indicate that anything might be wrong with the condition of the flour"; that 13 jutes were dispatched from the landing shed to one of his customers, Luis Lui & Co. at Punta Gorda; that 50 jutes were carted to another customer, James Brodie & Co., and that the balance of the shipment was removed to his warehouse.

On August 25th, two days later, defendant addressed another airmail letter to plaintiff enclosing a letter received from his customer, Messrs. Luis Lui & Co., in which complaint was made that the flour delivered to it was sour. Defendant states, in his letter, that he had been placed in an awkward position because he had no other flour to offer his customers and that he could not absolve plaintiff from the responsibility for having shipped an old stock of flour. On August 27th, defendant again wrote plaintiff advising it that his other customer, James Brodie & Company, had made complaint in connection with the flour and that plaintiff should supply him immediately with another 300 jutes of sound quality. He further requested instructions as to what disposition should be made of the 300 jutes already shipped, which, he stated, he was unable to sell except as hog feed. Upon failing to get an answer to the letters written by him on August 25th and 27th, defendant radioed plaintiff on September 8th advising it to telegraph instructions as the flour was "taking bugs therefore harmful other merchandise."

On September 10th, plaintiff communicated with defendant, by radiogram and airmail letter, stating that it was surprised at the complaints made by defendant as the flour was in good condition at the time it left its mill. It also requested that plaintiff send a sample of the flour to be tested in its laboratory. Defendant complied with this request and, on September 19th, plaintiff wrote defendant advising him that its laboratory inspection of the sample of the flour revealed that, although it was found to be slightly musty, it was usable for human consumption and that he should be able to dispose of the lot without further delay.

Thereafter there was much discussion (by mail and in personal interviews between defendant and representatives of plaintiff) respecting the best course to be pursued in the premises. In all of these discussions, defendant consistently maintained that he was not liable to plaintiff as the flour was unfit for resale at the time of delivery at Belize. On the other hand, it appears that plaintiff's representatives did not deny that defendant's objections were well founded as the correspondence clearly indicates that they sought to have him dispose of the flour for plaintiff's account in the best way possible. Defendant agreed to do this and, at one time, was able to get an offer of $2.20 per jute for the flour. However, this offer was withdrawn before plaintiff accepted it. Finally, defendant sold the balance of the flour at public auction from his warehouse. The amount received from the various sales made by him, in his attempts to dispose of the flour, amounted to the sum of $329.07. As against this, defendant had incurred expenses of $309.77 (which included payment of an important duty...