W. B. Hurst

• Decision Date: 07 April 1906
• Docket Number: 14,552
• Court: Kansas Supreme Court
• Parties: W. B. HURST, Doing Business as W. B. Hurst & Co., v. THE ALTAMONT MANUFACTURING COMPANY

85 P. 551

73 Kan. 422

W. B. HURST, Doing Business as W. B. Hurst & Co., v. THE ALTAMONT MANUFACTURING COMPANY

No. 14,552

Supreme Court of Kansas

April 7, 1906

Decided January, 1906.

Error from Bourbon district court; WALTER L. SIMONS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT--Sale--Delivery "f. o. b."--Duty to Furnish Cars. When a seller of merchandise agrees to sell twenty car-loads thereof, to be delivered to the buyer "f. o. b. cars" at the seller's place of business, it is not the duty of the buyer to furnish the cars to receive the goods; and, in an action by the buyer against the seller to recover damages for non-delivery of the merchandise under such a contract, the petition need not allege that the plaintiff furnished cars ready to receive the goods.

2. WORDS AND PHRASES--"f. o. b. Cars" Defined. The phrase "f. o. b. cars," when used in a contract between a buyer and seller of commercial commodities, where the use of a common carrier is necessary, means that the seller will secure the cars, load them, and do whatever may be required to accomplish the consignment and shipment of the goods to the buyer, free of expense to him.

John H. Crain, and John V. McKinney, for plaintiff in error.

Keene & Gates, for defendant in error.

GRAVES J. All the Justices concurring.

OPINION

GRAVES, J.

A demurrer was sustained to the plaintiff's petition by the district court. The plaintiff excepted, and brings that question here for review. The demurrer contained two grounds: (1) That several causes of action were improperly joined; (2) that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained generally. The record does not show whether the court considered the petition insufficient for both reasons or not. The case has been argued as though the second ground of the demurrer was the only one involved, and we shall so assume.

The petition is of considerable length, and the points discussed by counsel can be sufficiently stated without giving a full copy of the pleading. After the proper formal and introductory averments the petition states, in substance, that the defendant offered to sell to the plaintiff certain goods, at a stated price, as shown by "Exhibit A"; that the plaintiff accepted the offer, as shown by "Exhibit B"; that the plaintiff afterward made an additional order, as shown by "Exhibit C"; that later the plaintiff, by letter, confirmed and renewed previous orders, which were accepted by the president of the defendant company, as shown by "Exhibit D"; that in pursuance thereof shipping orders were sent to, and received by, the defendant, as shown by "Exhibit E"; that defendant received all shipping orders sent by the plaintiff as aforesaid, but "neglected and refused to deliver said egg-cases as it agreed to do, and as ordered by this plaintiff"; that at the time the first shipment should have been made, and ever since, such egg-cases have been worth from one and a quarter to two cents more than the contract price; and that the plaintiff has been damaged $ 1000. Then follows a prayer for judgment. The exhibits are as follow:

"EXHIBIT A."

"ALTAMONT, ILL., January 31, 1903. "W. B. Hurst & Co., St. Louis, Mo.:

"DEAR SIR--Yours of yesterday at hand ordering ten cars standard whitewood cottonwood-veneer egg-cases. We note that you speak of a one-piece end. The case we quoted you on has a two-piece dressed end, ready cleated. The price quoted you of nine cents, cars, factory, is at the Cairo, Ill., factory, and the rates as before named you are as follow: Eldorado, six cts. per 100; Marion, five cts. per 100; Mt. Vernon, seven cts. per 100.

"Terms are as you mentioned: two per cent. off for cash ten days from date of invoice.

"These cases average seven and one-half pounds each--possibly a little less. Hence it is no trouble to tell almost precisely what the case will cost you f. o. b. cars at the above-named stations. Cars are very scarce, and we would suggest that you place your order early; say at least twenty days in advance of time you expect to use them. Awaiting your prompt reply, we are, Respectfully yours,

ALTAMONT MANUFACTURING COMPANY."

"EXHIBIT B."

"ST. LOUIS, MO., February 2, 1903. "Altamont Manufacturing Company, Altamont, Ill.:

"DEAR SIRS--Replying to your favor of the 31st, if ends are two piece and cleated, as you say they are, balance of case filling required dimensions, being a standard whitewood case (veneer), it is all right. We will take the ten cars. You may file our order now for shipment of one car to Fayetteville, Ark., and one car to our address, South Greenfield, Mo. Would be glad to have you get these off at as early a date as possible. Since we know that the cases are at Cairo, we have bought a great many there, and know what the freight rates are ourselves to our various stations.

Yours truly, W. B. HURST & CO."

"EXHIBIT C."

"ST. LOUIS, MO., February 5, 1903. "Altamont Egg-case Company, Altamont, Ill.:

"GENTLEMEN--Confirming our conversation by telephone this morning, you can enter our order for ten more cars of cases to be same as last order of ten cars, at nine cents f. o. b. Cairo. We instruct you to order out, immediately, one car to Fredonia, Kan.; one car to Monett, Mo.; one car to Harrison, Ark.; one car to Springfield, Mo.; one car to Fort Scott, Kan. On the 3d we gave you order for one car for S. Greenfield, Mo., and one car to Fayetteville, Ark. Let these cars go forward first, the Fredonia car next, and then let the others go as they come.

"Now, relative to your pay: Do not worry about that. We supposed that Dun and Bradstreet had our rating. But you have our permission to address them, or to address the Citizens' National Bank of Fort Scott, Kan., National Exchange Bank, Springfield, Mo., Bank of Commerce here, or any of the commercial agencies. It is our intention, however, to discount all these cases, as the old company did with you. We are agreeable to your passing draft if you desire, but make it subject to arrival of car, for we would not want to pay the draft until cars arrived and were properly checked. Kindly let us hear from you promptly confirming above order, and oblige,

Yours truly, W. B. HURST & CO."

"EXHIBIT D."

"ST. LOUIS, MO., 2-9-'03. "Altamont Manufacturing Company, Altamont, Ill.:

"GENTLEMEN--This will confirm purchase from you of thirteen cars of veneer cases (in addition to the seven cars, orders for which have already been placed with you) at nine cents track, Cairo, Ill., the case to be standard veneer case, made of cottonwood.

"We will give you shipping instructions on these thirteen cars within the next few days.

Yours very truly, W. B. HURST & CO."

"Accepted: Altamont Manufacturing Company--J. E. R."

"EXHIBIT E."

"February 18, 1903. "Altamont Manufacturing Company, Altamont, Ill.:

"DEAR SIRS--To conform with our contract entered into a few days ago, you will kindly book our orders on thirteen cars of cases, to be shipped as promptly as possible to the following points: Two cars to Springfield, Mo.; two cars to S. Greenfield, Mo.; one car to Fredonia, Kan.; one car to Parsons, Kan. ; one car to Cuba, Mo.; three cars to Monett, Mo.; one car to Clinton, Mo.; one car to Fayetteville, Mo.

"We would like, if possible, for you to fill these cars in the following order, shipping the first two cars to Fayetteville, Ark., two cars to Springfield, Mo., two cars to South Greenfield, Mo., three cars to Monett, Mo., one car to Clinton, Mo., one car to Cuba, Mo., one car to Parsons, Kan., one car to Fredonia, Kan.

"All of these points are now ready to take the cars in as promptly as they are shipped; so kindly move them as promptly as you can.

"Our egg season is open, and we will need them all between now and March 1. Yours truly,

W. B. HURST & CO."

The supposed weakness of this petition, as we understand from the discussion of counsel, lies in its want of an allegation that the plaintiff furnished the necessary cars at the time when shipment was desired. On the other hand, it is contended that it was the duty of the defendant to obtain the cars from the carrier, load the goods therein, and consign them to the plaintiff. The real point in the controversy, therefore, seems to be this: Whose duty was it under the contract between these parties to cause the carrier to place cars in position to receive the goods to be shipped?

The exhibits attached to the petition constitute the contract. If concisely stated, it would be substantially as follows: Ship to us immediately, or as promptly as possible, twenty cars of egg-cases, distributed as hereinafter stated. We will pay therefor nine cents a case, f. o. b. cars at Cairo, Ill., payment to be made when cars arrive at the point of destination. This order was accepted.

In construing this contract the difficulty centers in determining what the parties intended by the clause "f. o. b. cars, Cairo, Ill." It is conceded that the letters "f. o. b." are for brevity used instead of the words "free on board." The clause when expressed in words, therefore, stands thus: Free on board the cars at Cairo, Ill. This language has been used in the transaction of commercial business many years, and has by general custom and usage among buyers, sellers and shippers acquired a definite and specific meaning, which is well understood and of common knowledge, and of which courts will take judicial notice. The significance of this language, when standing alone, is so well established that it has been generally held that proof in support of such signification is unnecessary and improper. (Sheffield Furnace Co. v. Hull Coal & Coke Co. 101 Ala. 446, 14 So. 672; Capehart et al. v. Furman...