Wessel v. Crozet Cooperage Co

• Decision Date: 12 November 1925
• Court: Virginia Supreme Court
• Parties: WESSEL, DUVAL & CO. v. CROZET COOPERAGE CO.

130 S.E. 393

WESSEL, DUVAL & CO.

v.CROZET COOPERAGE CO.

Supreme Court of Appeals of Virginia.

Nov. 12, 1925.

Error to Circuit Court, Albemarle County.

Action by Wessel, Duval & Co. against the Crozet Cooperage Company. Judgment for defendant, and plaintiffs bring error. Reversed and rendered.

Baird, White & Lanning, of Norfolk, and Gilmer & Graves, of Charlottesville, for plaintiff in error.

Allen, Walsh & Michie, of Charlottesville, for defendant in error.

BURKS J. When this case was formerly before this court, a judgment by default in favor of the plaintiff in error was set aside, and the case was "remanded to the court below to be there reinstated in the same condition in which it was at the time the judgment was rendered." The merits of the case were not involved or passed on. Wessel v. Bargamin, 137 Va. 701, 120 S. E. 287. In the instant case the merits of the controversy are involved.

The action was brought to recover the difference between the contract price and the market price of 135 tons of nitrate of soda, sold by the plaintiffs to the defendants. There was a verdict and judgment in favor of the defendants, and the plaintiffs assign error.

The contract was negotiated by a broker, W. A. Keefe Co., Inc., and was in writing, signed by Crozet Cooperage Company and "W. A. Keefe, Broker." It was accepted, and its fulfillment undertaken by Wessel, Duval & Co., though not signed by them. By the terms of the contract the Crozet Cooperage Company purchased of Wessel, Duval & Co. 200 long tons of nitrate of soda at $3.10 per ton. The contract is dated November 20, 1920, and was for the purchase of nitrate of soda, which was expected to arrive at the port of Norfolk, Va., in February and March, 1921, by steamers or equivalent sailers, from the west coast of South America. The terms of payment were "net cash against sight draft with bill of lading attached." The contract contained a number of specific provisions exempting the sellers from liability arising from causes incident to shipments of this nature, and concluded with this general provision:

"Sellers shall in no event be held responsible for any contingency beyond their control, whether herein specifically provided for or not.

"War risk insurance for account of buyers."

The contract also contained this provision:

"Nitrate to be taken by buyer at port of arrival or place when ready for delivery, ex-vessel and or ex-store as above, in single bags in customary good order. Buyer to give shipping instructions promptly after notice of time of expected arrival. Failure to give prompt shipping instructions may, at sellers' option, be deemed refusal to take the nitrate. Wharfage and transfer charges, if any, at port of arrival shall be for account of buyer."

It was argued before us that the contract was void for want of mutuality of obligation, but we find no such difficulty about the contract. It is true that it contained many provisions releasing the sellers from liability if their inability to comply with its terms arose from causes beyond their control, but that was a legitimate subject of contract, and, having been agreed to, must be complied with whether onerous or not. International Banking Corporation v. Irving National Bank (C. C. A.) 283 F. 105. But aside from this, no such defense was made in the trial court, and cannot now be set up in this court. The contract was recognized as in effect and binding by both parties. The defendants ordered and paid for a part of the goods contracted for, and at the trial asked for and obtained instructions predicated upon the validity of the contract. They will not be permitted to shift their position and occupy an inconsistent attitude. Ches. & O. R. Co. v. Rison, 99 Va. 18, 37 S. E. 320; Alexander v. Commonwealth, 137 Va. 477, 120 S. E. 296.

The defendants apparently expected to prove that Keefe, the broker, before the written contract was entered into, agreed to "handle" all the nitrate the defendants could not dispose of, but this testimony was properly excluded by the trial court under the parol evidence rule. They then fell back upon the defense that they were in no default in failing to give shipping directions, because they were under no obligations to give such directions until after the plaintiffs had given them notice of the time of the expected arrival of the ship or ships bringing the nitrate, and that no such notice had ever been given.

The contract expressly gave the sellers the right to fill the order either "ex-vessel" or "ex-store" at their option. It could make no difference to the buyers from which source the nitrate was taken, except a small difference in the expense of handling. The contract stated "Expected arrival: February, March, 1921." On March 1, 1921, the broker who had negotiated the sale wired the defendants:

"Mail shipping instructions on nitrate desired for immediate use will go forward next day."

On the same date, March 1, 1921, he wrote them as follows:

"I wired you this morning requesting that you forward shipping instructions on what nitrate you want delivered this month, and I am confident same will be rolling two or three days after same is received. Please do not have any concern about getting your nitrate promptly as the importers are right up to date in their deliveries."

The defendants admit the prompt receipt of both the letter and the telegram. The two must be read together, and, when so read, they furnish abundant evidence that the sellers were ready to fill the entire order promptly, and only awaited shipping directions. February and March were the months for delivery. The letter was dated March 1st, and the request was for "shipping instructions on what nitrate you want delivered this month, " and the further assurance was added:

"Please do not have any concern about getting your nitrate promptly as the importers are right up to date in their deliveries."

No other notice was necessary of the...