W. S. Forbes & Co v. Southern Cot-ton Oil Co

• Citation: 108 S.E. 15
• Court: Supreme Court of Virginia
• Decision Date: 16 June 1921
• Parties: W. S. FORBES & CO. v. SOUTHERN COT-TON OIL CO.

108 S.E. 15

W. S. FORBES & CO.

v.SOUTHERN COT-TON OIL CO.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Circuit Court of City of Richmond.

Assumpsit by W. S. Forbes & Co. against the Southern Cotton Oil Company. A verdict for plaintiff was set aside, and judgment entered for defendant, and plaintiff appeals. Affirmed.

S. S. P. Patteson, of Richmond, for appellant.

Coke & Pickrell and R. W. Carrington, all of Richmond, for appellee.

BURKS, J. This is an action of assumpsit brought by the plaintiff in error, a corporation (plaintiff below), against the defendant in error (defendant below), to recover damages for failure to deliver according to contract two tanks of crude cotton seed oil. There was a verdict for the plaintiff for $800, which the trial court set aside and entered judgment for the defendant pursuant to section 6251 of the Code. The plaintiff excepted, and the case is brought here on a writ of error to that judgment.

The plaintiff filed an original and also an amended declaration, to which the trial court sustained a demurrer, and the plaintiff by leave of court filed a second amended declaration. A demurrer to the last declaration was overruled, and the case was tried on the general issue of nonassumpsit. The plaintiff was permitted to prove its whole case under the second amended declaration, but, having excepted to the ruling of the trial court sustaining the demurrer to the original and first amended declarations, as provided by section 6116 of the Code, it insists that we shall pass upon the sufficiency of the original and amended declarations. If there was error in sustaining the demurrer thereto it was harmless, and the question presented is moot. The statute was not intended to apply to such a case. This court does not undertake to correct harmless errors.

The contract which is the subject of litigation was made by brief telegrams of offers by the defendant, which were accepted by the plaintiff, and is substantially as follows: On March 6, 1917, the defendant agreed to sell to the plaintiff two tanks of basis prime crude cotton seed oil, at 90 cents a gallon, f. o. b. North Carolina Mills, delivery to be made last half of March in tanks to be furnished by the plaintiffs. The defendant had a number of such oil mills and was to notify the plaintiffs at which of its mills it would make delivery.

On March 16, 1917, the defendant wrote the plaintiff from Savannah, Ga., as follows:

"Referring to your purchase of March 6th of two tanks basis prime crude cotton seed oil at 90¢ per gallon f. o. b. North Carolina Mills, calling, for last half March shipment.

"Please forward immediately one tank each to the Southern Cotton Oil Co. mills located at Fayetteville, and Wilson, N. C., furnishing Mr. E. B. Borden, Jr., D. M. the Southern Cotton Oil Co., Goldsboro, N. C, with full shipping instructions furnishing copy of your advices to the undersigned.

"Yours truly,

"C. W. Bridger, Traffic Department."

It Is not positively shown when this letter was received, though the plaintiff admits it might have been received as early as March 18. On March 21, the plaintiff replied as follows:

"Answering your letter of the 16th, we will arrange to send the two empty tanks, south, the first of next week, we will send them to the points mentioned, Fayetteville and Wilson supplying full shipping instructions to Goldsboro, and copy of our advices to you at Savannah."

The tank cars were not delivered to the defendant for the reception of the oil during the last half of March. One of them was shipped from Richmond March 30, but did not reach its destination till April 2. The other was shipped from Richmond April 2 and reached its destination April 5. The plaintiff relies upon a trade usage and also upon the manner of doing business between the parties operating under former contracts as an excuse for not making prompt delivery of the tanks, and offered evidence to show a well-established usage of trade in that business not to require delivery of the tanks on the exact date called for in the contract, but simply to require the date to be approximated, also to show prior dealings betweenthe same parties in the performance of similar contracts in which approximate dates of delivery and reshipment of tank cars had been accepted as performance of the contract. These facts were sought to be established by the testimony of W. G. Hockaday, the plaintiff's sales manager and purchasing agent. But the questions put to the witness were objected to on the ground that the plaintiff was seeking to prove, "not a custom of trade, or custom of this particular trade, but he wants to take the preceding dealings to modify the express written terms of this contract." Upon this contention the trial court ruled:

"If there is a general custom of the trade, well known and acted upon by all parties, and that custom is pleaded, then you can prove that custom as a well-known custom in the trade, and it becomes part and parcel of every contract; but the mere fact that there were dealings or other contracts by which these other contracts were allowed to be changed cannot come in this case."

The trial court, not being satisfied that the testimony of the witness was of such character as ought to be allowed to go to the jury, sent the jury out, and permitted the witness to be examined and cross-examined at length to ascertain the facts on these points, and, having ascertained the extent of his knowledge, excluded his evidence on these questions. The testimony of the witness did not establish any trade usage on the subject that could affect the express contract of the parties, nor did it show any prior dealings that could affect such contract. While the witness testified that the plaintiff had been dealing with the defendant for the purchase of cotton seed oil for several years prior to the present controversy, his examination disclosed only two other contracts between them for the purchase of cotton seed oil, one in which the contract called for the sale and delivery in first half of February preceding the contract in suit of two tanks in which the tanks were not delivered till February 16 and 19, but were accepted and filled by the defendant. The other for sale and delivery of three tanks at a price stated "subject to market changes" in the first half of April immediately following the March contract here in litigation. Only one of these contracts was prior to the contract in suit, and that was for delivery the first half of February. The fact that the plaintiff was not held to the exact date of delivery under the February contract gave it no right to expect or demand a similar indulgence on the March contract. The circumstances surrounding the two contracts may have been entirely different. Indeed, the record shows that the contract in suit was entered into on March 6, 1917, and that between that date and March 31 there was an advance of from 5 to 10 cents a gallon in the oil. No such facts are shown as to the February delivery. In contracts of this nature, time is of the essence of the contract, and failure to perform within the time limited by the contract, as a rule, constitutes a breach. Bowes v. Shand, 2 App. Cas. 455, 463; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; Norfolk Hosiery Co. v. Etna, etc., Co., 124 Va. 221, 235, 98 S. E. 43. The trial court committed no error in excluding the testimony.

[4, S] Exception was taken to the ruling of the trial court in refusing to permit a witness to answer a question, but the same question was put to the same witness at a later stage, and he was permitted to answer it. The error, if any, was harmless. The order of the examination of witnesses lies chiefly in the discretion of the trial court. Robertson's Ex'r v. Atlantic Coast Realty Co., 129 Va.——, 106 S. E. 521.

Exception was also taken to the action of the trial court in refusing to permit the plaintiff to ask its only witness several questions relating to prior dealings between the plaintiff and the defendant with reference to the sale and purchase of crude cotton seed oil. As hereinbefore stated, the court permitted the witness to be examined and cross-examined at length, out of the presence of the jury, and thereby learned that he could not testify as to any usage of trade in the business that could affect the contract, and that as to contracts between the parties to this action he testified as to only two other contracts, one before and the other after the one here in litigation, and that they were separate and distinct contracts, with no other relation to each other except that they were between the same parties, for the sale of crude cotton seed oil, and deliveries were for the last half or first half of a month. Under these circumstances, the trial court refused to permit the questions to be answered. In this there was no error. As to how far a trade usage may affect an express contract, see North Shore Imp. Co. v. New York, &c., R. Co., 108 S. E. 11, decided today.

The chief complaint of the plaintiff in error is of the action of the trial court in setting aside the verdict in favor of the plaintiff on the ground that it was contrary to the evidence or without evidence to support it, and in entering judgment for the defendant, as provided in such case by section 6251 of the Code. The plaintiff in error insists that there was evidence to support the verdict, and that the court erred in setting it aside, but that if the verdict was properly set aside a new trial should have been awarded because section 6251 is unconstitutional, in that it deprived the plaintiff of a trial by jury. The plaintiff in error further insists that if section 6251 is held to be constitutional, the trial court erred in not ren-dering judgment for the full amount claimed by the plaintiff, instead of a judgment for the defendant. The validity of ...