WJ Foye Lumber Co. v. Pennsylvania R. Co.

• Decision Date: 05 March 1926
• Docket Number: No. 6883.,6883.
• Citation: 10 F.2d 437
• Parties: W. J. FOYE LUMBER CO. v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 437 (1925)

W. J. FOYE LUMBER CO. v. PENNSYLVANIA R. CO.

No. 6883.

Circuit Court of Appeals, Eighth Circuit.

December 17, 1925.

Rehearing Denied March 5, 1926.

Raymond G. Young, of Omaha, Neb. (Mathew A. Hall, of Omaha, Neb., on the brief), for plaintiff in error.

William M. Giller, of Omaha, Neb. (Frank L. Weaver, of Omaha, Neb., on the brief), for defendant in error.

Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.

SANBORN, Circuit Judge.

W. J. Foye Lumber Company, the plaintiff below, a corporation, was a jobber and broker of timber ties and lumber at Omaha, Neb. In April and May, 1920, the Pennsylvania Railroad Company bought from it 200,000 ties, estimated to weight 3,300 pounds per 1,000 feet, which the plaintiff purchased from mills in the Pacific Northwest and caused to be delivered to the defendant f. o. b. cars at the mills, and the defendant paid the freight charges upon them from the mills to their destinations on the Pennsylvania railroads at Chicago and one or two other points. These cars were sent from the mills on the orders of the plaintiff to their destinations, specified by the defendant. The defendant claimed that the agreed purchase price of these ties was $32.50 per 1,000 feet f. o. b. cars at the mills. The plaintiff delivered the ties, the defendant received them and paid or satisfied the plaintiff that it would pay this $32.50 per 1,000 feet therefor. The plaintiff claims that the agreed purchase price was $32.50 per 1,000 feet plus the difference between the amount of the freight charges on 200,000 ties weighing 3,300 pounds per 1,000 feet from the mills to the destinations of the ties shipped and the actual freight charges on the ties actually shipped which, on account of their lighter weight, amounted to $15,055.15 less than those charges would have been if the ties purchased and shipped had weighed the 3,300 pounds per 1,000 feet. For convenience this difference in freight charges will be called "underweight," and the difference between the amount of the freight charges if the ties had weighed 3,300 pounds per 1,000 feet, and the freight charges for their transportation if they had weighed more than 3,300 pounds per 1,000 feet will be called "overweight."

Because the railway company refused to pay this additional $15,055.15 underweight the plaintiff brought this action. It was tried before the court below and a jury, and at the close of the trial the court instructed the jury to return a verdict for the defendant. That ruling and many others have been assigned as error and exhaustively briefed and discussed, but the answer to a single question will unavoidably dispose of this case in this court. That question is: Was the evidence in this case such that, if the court had submitted the question to the jury whether or not the railroad company agreed to pay this $15,055.15 underweight as a part of the purchase price of these ties, and the jury had found that it did so agree, the court would not, in the fair exercise of its judicial discretion, have sustained that verdict?

These are established rules by which the consideration and decision of the question of the legality of the court's direction to the jury to find a verdict for the defendant must be tested and decided:

It is the duty of the trial court to direct a verdict at the close of the trial in two classes of cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, but of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it. And when the trial court has directed a verdict upon the latter ground, the appellate court may not lawfully reverse the judgment founded upon it, unless upon a consideration of the evidence it is convinced that it was not of such a conclusive character that the court below, in the exercise of a sound judicial discretion, should not have sustained a verdict in the opposite direction. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 660, 21 S. Ct. 275, 45 L. Ed. 361; Randall v. Baltimore & Ohio R. R. Co., 109 U. S. 478, 481, 482, 3 S. Ct. 322, 27 L. Ed. 1003; Agricultural Ins. Co. v. Higginbotham (C. C. A.) 274 F. 316, 318; Holland et al. v. Director General of Railroads (C. C. A.) 273 F. 928, 929; Fricke v. International Harvester Co., 247 F. 869, 871, 160 C. C. A. 91; Missouri Pacific Ry. Co. v. Oleson, 213 F. 329, 330, 130 C. C. A. 31; Canadian Northern Ry. Co. v. Senske, 201 F. 637, 645, 120 C. C. A. 65.

We turn to the evidence in the record. These facts were admitted or conclusively proved: The plaintiff sold the ties in question to the defendant, they were delivered, received, and the defendant paid or will pay $32.50 per 1,000 feet for them f. o. b. cars at the mills and the freight charges for their transportation thence to their destinations. The plaintiff bought the ties of the mills at prices agreed upon between it and the mills, which differed from the price agreed upon between the plaintiff and the defendant, for the sale thereof by the former to the latter, and the defendant was not a party to or in any way bound to the mills or the plaintiff by reason of the contract of sale or the transaction between the mills and the plaintiff.

The plaintiff claims that it guaranteed to the defendant that the weight of the ties should be 3,300 pounds per 1,000 feet and agreed to pay to the defendant any over-weights, and that the defendant agreed to pay to the plaintiff any underweights. As the plaintiff was to buy, furnish, and deliver the ties, and could select ties lighter or heavier than the 3,300 pounds per 1,000 feet, this was not a contract that would be very likely to appeal strongly to a business man, a purchaser either for himself or for a railroad company, nor was it one that a purchaser would probably make. Such a proposed purchaser would be likely to foresee a probable excess of underweights if he entered into such a contract, though perhaps not to the extent of $15,055.15; nor is it very clear how the plaintiff, if such a contract were made, could select and furnish under it ties weighing so much less than the weight it had guaranteed as to cause underweights and a loss to the defendant of $15,055.15, without action, rather inconsistent, to say the least, with its guaranty. These considerations are not unworthy of notice, in view of the familiar rule that in the determination of the extent and the meaning of a contract that result which makes it a rational and probable agreement must be preferred to that which makes it an unfair, unusual, or improbable one. Pressed Steel Car Co. v. Eastern Ry. Co. of Minnesota, 121 F. 609, 611, 57 C. C. A. 635; American Bonding Co. v. Pueblo Investment Co., 150 F. 17, 28, 80 C. C. A. 97, 9 L. R. A. (N. S.) 557, 10 Ann. Cas. 357.

The transaction between the plaintiff and defendant was conducted by W. J. Foye of Omaha, on behalf of the plaintiff, and by I. B. Thomas, purchasing agent, and C. W. Clewell, lumber agent, of the defendant at Chicago. On April 6, 1920, Mr. Foye met Mr. Thomas and Mr. Clewell for the first time at the office of Mr. Thomas in Chicago. Mr. Thomas told him that they wanted ties, and wanted them quick, and asked him how fast he could furnish them and the price. Mr. Foye answered that he could get them 20 M by May 15th, and 50 M every 30 days thereafter, and that he could furnish ties weighing 3,300 pounds per 1,000 feet for $2.36 per standard tie, and $2.19 for the next size below, delivered at Chicago, or at $32.50 per 1,000 feet delivered f. o. b. cars at the mills. They verbally agreed that the railroad company would pay 85 per cent. of the price on receipt of the bills and bills of lading, and the balance, or 15 per cent., upon the arrival of the ties at Chicago, or their other final destination. Mr. Thomas then said, "Now, you go ahead and get those out as fast as you can, and we will write you a letter." There is no controversy thus far. But Mr. Foye testified that at this meeting he explained to Mr. Thomas what was meant by guaranteed weights and overweights; that Mr. Thomas asked him if the price was on the basis of 3,300 pounds to the 1,000 feet and he answered, "Yes;" that Mr. Thomas then said, "What if they weigh more?" He said, "3,300 pounds is guaranteed, and is the association standard weight; the Western Railway Weighing Association recognizes that as the weight on fir ties or timber. They will protect that, and, if any expense bill is furnished showing more than that, they will protect that weight, with the understanding, when getting those ties for you at $32.50 at the mill, this weight is guaranteed; if any of those shipments overweigh, you charge that back, and if any of those shipments underweigh, there is a credit. The mills get that. We don't get anything at all of that."

But, if Mr. Foye made that statement to Mr. Thomas and Mr. Clewell, it failed utterly, in our opinion, to give notice to either of them that the plaintiff would guarantee the weight, or that the defendant would be expected to or did agree to pay the underweights. In view of the fact that there were here two contracts independent of each other, one between the plaintiff, the purchaser from the mills, and the mills, and the other between the plaintiff, the seller, and the railroad company, the purchaser, and Mr. Foye was speaking for the Foye Company, the statements in it that "they will protect that weight," that "when getting those ties for you at $32.50 at the mill, this weight is guaranteed," that "if any of those shipments underweigh, there is a credit; the mills get that; we don't get anything at all of that," those statements seem to indicate that this matter of guaranty appertained to the contract between the plaintiff and the mills, and not to the contract between the plaintiff and the defendant. If the mills guaranteed weights to the purchasers from them, ...