West Tennessee Grain Co. v. J.C. Shaffer & Co.

• Decision Date: 01 April 1924
• Docket Number: 3942.
• Parties: WEST TENNESSEE GRAIN CO. v. J. C. SHAFFER & CO.
• Court: U.S. Court of Appeals — Sixth Circuit

299 F. 197

WEST TENNESSEE GRAIN CO. v. J. C. SHAFFER & CO.

No. 3942.

United States Court of Appeals, Sixth Circuit.

April 1, 1924

T. O Morris and W. S. Draper, both of Union City, Tenn. (Spragins & Hewgley, of Jackson, Tenn., on the brief), for plaintiff in error.

C. V Clark, of Chicago, Ill. (Bond & Bond, of Jackson, Tenn., and Jeffery, Campbell & Clark, of Chicago, Ill., on the brief) for defendant in error.

Before DENISON and DONAHUE, Circuit Judges, and JONES, District Judge.

DENISON Circuit Judge.

This case is the second time in this court. The facts are fully stated in the former decision, 271 Fed. 820, to which reference may be made. As they must be considered to be impliedly established by the verdict under review, they are, in brief:

The plaintiff in error, defendant below, operated a grain elevator in a small town in western Tennessee. In August it sold 15,000 bushels of corn, for October delivery at Chicago, at $1.30 per bushel. October passed without delivery, and the seller was without any legal justification for its breach. In the meantime, the market price had largely increased and was continuing to advance. About November 7th the vendor, having accumulated the corn and professing anxiety to perform as soon as cars could be had, took up with the vendee's agent negotiations for permitting, as full performance, November delivery in Memphis. These negotiations failed and no agreement was reached (so the jury thought). At that time the vendor could have sold to others at a profit of at least $6,300 over the contract price, and the prices thereafter continued to increase. The vendor, therefore, plainly gained more than $6,000 by breaking its contract, and this, with interest, would have amounted at the time of the last trial, to about $8,000. Plaintiff's evidence at the trial, and not directly disputed, as to the market values at Chicago, showed its actual damage, including interest, to be about $16,000. The case has been tried five times, and on the last trial the jury gave the plaintiff a verdict for $8,000. Clearly such a verdict and judgment should be allowed to stand, unless the law imperatively requires reversal.

The great matter of controversy during all the trials has been whether the negotiations for November delivery did or did not result in a contract to that effect, thus excusing the vendor's October default and throwing the burden of the breach upon the vendee, because it denied such later contract and eventually refused to consider any later delivery. As the market turned, the original contract was disastrous for the vendor; its defense was, in effect, an attempt by confession and avoidance to escape this loss and to deprive the purchaser of its market gain; the burden was upon the vendor to establish this practically affirmative defense; and alleged errors on the trial should not be considered as prejudicial, unless they materially hampered a fair trial of this issue.

It bears upon the probability of this extension contract, as well as upon the question of original liability, to know whether the original contract was for absolute delivery, or, as the vendor claims, was conditional upon its ability to get the corn and cars within the time limit. Without discussing the facts, we think it entirely clear that all preliminary negotiations were merged in the written contract, which was in the form of an accepted order, and which contained no such conditions. Nor can we regard the offered parol proof as tending to show a separate contract, or a condition precedent to the taking effect of this one.

Defendant claimed that on November 7th a definite oral agreement was made with Hirshey, plaintiff's agent, to accept November delivery at Memphis as a satisfaction of the contract. Hirshey, as a witness, denied it. Plaintiff was then permitted to put in evidence letters and telegrams sent by Hirshey to plaintiff on November 8th and 9th, which purported to recite his dealings with defendant during that period, and which mentioned no such arrangement. Error is assigned upon the admission of these letters. The rule which permits proving statements made at or about the time of the occurrence, as a part of the res gestae and in corroboration of the later testimony of the speaker, tends to come in conflict with the rule which forbids proof of self-serving declarations. While it is not accurate to say that the decision of this conflict is a matter of discretion with the trial judge, yet there must be an extreme and important breach of the applicable rule to justify a reversal and a new trial on this ground. It is enough to say that we are not satisfied that there was on this trial any such breach. It was...