Vaccaro Bros. v. Farris S.

• Decision Date: 23 January 1923
• Citation: 92 W.Va. 655
• Court: West Virginia Supreme Court
• Parties: Vaccaro Brothers & Company v. John Farris et als.

92 W.Va. 655

Vaccaro Brothers & Company

v.John Farris et als.

Supreme Court of Appeals of West Virginia.

Submitted January 16, 1923.

Decided January 23, 1923.

1. Sales In Action for Purchase Price of Goods Defendant May

Recoup Damages by Reason of Goods Not Conforming to Contract.

In an action by the plaintiff for the purchase price of a carload of bananas sold to and accepted by the defendant, the defendant may recoup damages sustained by reason of the bananas not conforming to the contract, (p. 659).

2. Same Title in Goods Passes Upon Delivery to Carrier or Diversion from Original to Purchaser, "Rolling".

Where plaintiff sold defendant a carload of bananas f. o. b. New Orleans, and the bananas were of the kind and quality agreed upon and were delivered to the carrier, properly packed and iced for shipment, consigned to the defendant pursuant to contract, title passed upon delivery to the carrier. And if such sale were made "rolling" f. o. b. New Orleans, that is, while the car was on its journey from New Orleans, by diverting it from the original consignee to the defendant, and the bananas, when diverted, conformed to the contract, title thereto passed to the defendant upon diversion thereof to him. (p. 661).

3. Same Goods Packed for Shipiment and Otherwise Conforming

to Contract at Buyer's Risk After Delivery to Carrier or Diversion to Buyer.

Whether the sale was made f. o. b. New Orleans or "rolling" f. o. b. New Orleans, if the bananas were properly packed and iced for shipment and otherwise conformed to the contract, at the time of delivery to the carrier or at the time of diversion, they were thereafter at the buyer's risk and the seller is not liable for deterioration naturally resulting during transit. If they were damaged thereafter through the neglect of the carrier, the seller is not responsible therefor. (p. 661).

4. Trial Trial Court Must Direct Verdict for Plaintiff Where

Evidence clearly Insufficient to Support Verdict Returned for Defendant.

Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evj dence in support of plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff, (p. 663).

(McGinnis, Judge, absent.)

Error to Circuit Court, Kanawha County. Action by Vaccaro Bros. & Co. against John Farris and others. Judgment for defendants, and plaintiff brings error.

Reversed and remanded.

Morton, Mohler & Peters, for plaintiff in error.

E. L. Stone and Horan & Pettigrew, for defendant in error

Meredith, Judge:

Plaintiff sued in assumpsit to recover $906.10, with interest from July 17, 1919, being the purchase price of a carload of bananas, with initial icing charge. Defendants pleaded nonassumpsit and filed notice of recoupment. The jury returned a verdict in favor of plaintiff for $600; plaintiff made a motion to set aside the verdict and award it a new trial, claiming it was contrary to the law and the evidence, and assigns various other errors. The motion was overruled and judgment was entered on the verdict. Plaintiff obtained a writ of error.

To dispose of the assignments of error it is necessary to consider the evidence. The record shows that the plaintiff was engaged in raising and importing tropical fruits, with offices in New Orleans, and plantations near LaCeiba, Honduras, Central America, between which points it operated a steam-ship line for carrying fruits to New Orleans. From that point plaintiff marketed its fruits in the United States. The bananas were assorted according to grade, loaded in refrigerator cars and these cars were placed in trains of about fifty cars each. After loading, the shipper placed about three tons of ice in the bunkers of each car to preserve the fruit. This initial icing is charged to the consignee by the shipper. Thereafter, in case additional icing is necessary, it is done by the carrier, and the icing charge is added to the freight bill, and paid by the consignee.

Plaintiff sold its bananas in car-load lots. When sold be- fore leaving New Orleans they were sold f. o, b. New Orleans. Sometimes loaded cars were pnt in trains going north and were sold while moving. In such cases they were sold "rolling" f. o. b. New Orleans. The defendants, prior to the present sale, had been conducting their main business in Toledo, Ohio, and had been doing business with plaintiff, having made frequent purchases of car-load lots "rolling" f. o. b. New Orleans. They were just opening a branch business at Charleston, West Virginia. They usually bought cars of fruit "rolling" rather than before being loaded, for the reason that they could be bought at a lower price. The sale in this instance was made through J. J. Geis, District Manager for plaintiff. His office was then in Cincinnati, and the agreement was made by telephone, on the 7th, 8th or 9th of July, 1919. It was confirmed by letter to defendants on fhe 9th. Whether it was made before the car was loaded or while it was "rolling" we think makes little difference. The parties in their evidence practically agree on the terms of the sale. Plaintiff sold defendants a car-load of bananas, quality grass-green, consisting of 425 eight-hand bunches, weighing 23, 450 pounds, at $3.80 per hundred weight, f. o. b. New Orleans. They were to be of sound and merchantable quality at time of shipment and were to be properly loaded. They were consigned to defendants at Charleston, West Virginia. If they were sold to defendants after the train-load left New Orleans, then the car was diverted and re-consigned to defendants when the train reached Memphis, but the terms of the contract were the same. Defendants were to pay all charges. Plaintiff sent with the train, out of New Orleans, a messenger, whose duty it was to see that cars going to designated consignees along the route were properly and promptly diverted, that the cars were properly iced by the railroad, and to take the temperatures inside and outside each ear, note the condition of the fruit therein, make proper reports of all these matters, and at the end of his division to hand his report to a messenger, who took his place on the train and performed like duties on his division. These messengers were employed and paid by the shipper, except in particular instances the consignee might employ his own messengers.

In the present instance messenger Natale Lafanci accompanied the train from New Orleans to Memphis; there his report was turned over to messenger Chris. Berthelson, who accompanied the train to Louisville, and saw that a car consigned to a purchaser in Huntington, another to a purchaser in Hinton, and the car in controversy consigned to the defendants, were promptly diverted to the Chesapeake & Ohio Railway Company at Louisville; no messenger accompanied these three cars from Louisville, as Berthelson was required to accompany the train to Pittsburgh. Both these messengers made out the report as to these cars, and testify that the fruit was in good green condition at the time the cars left their charge. The car in controversy was Illinois Central No. 59481. Berthelson testifies that when this car was diverted at Louisville, the fruit was in good condition, a few of the bananas turning, the car was properly ventilated, its bunkers were practically full of ice. That was July 10th. That same day, he telegraphed defendants "Diverted 59481, good. Plugs out vents on iron protect." The car left Louisville probably before noon on July 10th and reached South Charleston over the Chesapeake & Ohio Railway at 5:35 P. M., July 12th, making the run in the usual time. Whether it was re-iced during this period does not appear. The terminal yard of the Chesapeake & Ohio Railway is at the southern end of the South Charleston bridge. Freight from that railway for Charleston is brought over that bridge. Illinois Central car No. 59481 was brought over the bridge and delivered to the Kanawha & Michigan Railroad, on whose lines defendants' side-track is situate, at 12:30 Sunday morning, July 13th. That day it was placed on defendants' siding, and defendants examined it about 8:00 o 'clock Monday morning, July 14th. They found the bananas were ripe, not spoiled, but unsuitable for their trade, which was that of wholesaling. They notified plaintiff's district manager, Geis, but he declined to agree to any rescission of the contract. On Tuesday morning they sold the bananas for less than the purchase price. They contend that they were compelled to sell them because of instructions from Federal Food Administrator Whitney. They offered to pay plaintiff the amount received, less freight and icing charges paid by them, but the offer was refused.

Defendants filed notice of recoupment, in effect claiming that the bananas were to be of sound, merchantable and grassgreen...