Weil Bros. v. Yazoo Yarn Mills

• Decision Date: 28 January 1930
• Docket Number: No. 5524.,5524.
• Citation: 36 F.2d 942
• Parties: WEIL BROS. v. YAZOO YARN MILLS.
• Court: U.S. Court of Appeals — Fifth Circuit

36 F.2d 942 (1930)

WEIL BROS. v. YAZOO YARN MILLS.

No. 5524.

Circuit Court of Appeals, Fifth Circuit.

January 28, 1930.

J. H. Thompson, of Jackson, Miss., and R. E. Steiner, Jr., of Montgomery, Ala. (Robert H. Thompson and J. Harvey Thompson, both of Jackson, Miss., and Robert E. Steiner, Jr., of Montgomery, Ala., on the brief), for appellants.

George W. May, of Jackson, Miss., for appellee.

Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

The appellants sued the appellee in the District Court of the United States for the Southern District of Mississippi for refusing to accept 50 bales of long staple cotton, part of a purchase of 125 bales, sold by appellants to appellee, of which appellee accepted and paid for 75 bales. The contract was made in January, 1920, by correspondence, and was for the sale and purchase of 125 bales of cotton, equal to sample submitted, at 72½ cents per pound, for shipment to Yazoo City, Miss., not later than May or June, at buyer's option, buyer to pay interest at 6 per cent. and carry insurance till delivery of the cotton. Appellants had 125 bales of cotton in New Orleans to apply to the purchase, and so notified appellee. Appellee rejected 50 bales of the cotton at New Orleans, and the appellants acquiesced in the rejection. On March 15, 1920, appellants wrote appellee that they would replace the 50 bales rejected. On May 26, 1920, appellants notified appellee that they were ready to ship 75 bales from New Orleans and 50 bales from Forest City, Ark., to which appellee assented. On June 23d, appellants notified appellee that they had shipped the 125 bales and were drawing on appellee for the purchase price thereof. On June 25th, appellee wired appellants that 50 bales of the cotton shipped to Yazoo City from Arkansas was wrong and was rejected. On June 28th, appellants wrote appellee that they were taking the matter up with the party from whom they had bought the cotton. On June 30th, appellants wrote appellee that they had written the party from whom they had bought the cotton, asking what he was going to do about it, and were waiting to hear from him, and asked appellee to advise them what allowance they would accept for the deficient cotton, to which appellee replied that they would not accept any of the 50 bales from Arkansas. On July 1st, appellants wired appellee, insisting on payment of the draft for the entire 125 bales, stating that, if they found the 50 bales not to be up to grade, they would insist on the Memphis shipper replacing immediately, and that appellants would stand back of the Memphis shipper and protect appellee. Appellants agreed finally to accept payment for the 75 bales separately, and appellee paid the part of the draft representing the 75 bales, and refused to pay the part representing the 50 bales from Arkansas. Appellants' proof tended to show that 29 of the 50 bales were up to grade. Appellee's proof tended to show that none of the 50 bales was up to contract requirements. Appellee rejected the entire 50 bales shipped from Arkansas, and bought 50 bales elsewhere to replace it. The market price of cotton declined, and appellants lost thereby on the rejected cotton, and for that loss, the amount of which is not in dispute, they sued.

If the terms of the contract of sale and purchase be alone looked to, appellee was not bound to receive the 50 bales upon any tendency of the evidence. The purchase was an entire one, and appellee was not required to accept less than the 50 bales, necessary to make up the 125 bales bought by it; nor was appellee bound to accept any cotton that did not come up to contract requirements. Any custom that required this would be an unreasonable one. It was undisputed that at least 21 bales of the Arkansas cotton were not up to contract requirement. So far as the contract went, therefore, appellee was justified in refusing to accept any part of the 50 bales. Time was of the essence of the contract. The cotton was to be used in appellee's mill, and it was needed to keep the mill going, and this was known to appellants. Delivery was required to be made not later than June 30th. On June 30th, delivery of 50 bales of right cotton had not been made, and no offer had...