Edgar v. Imperial Ice Cream Co.

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment rendered in the lower court in favor of the appellee against the appellants. There are two cases which were consolidated, and a verdict was rendered for $8,563.30 and judgment was entered on the 15th of February, 1921, for that sum with interest and costs. Attachments were issued, and the cases were tried on the short ⁶³⁴ notes.

The one in the record originally contained the common counts, but during the trial it was amended by the addition of two special counts — one being for the alleged defective condition of sugar in a car shipped to Cumberland, and the other being for the defective condition of sugar in a car shipped to Wheeling, West Virginia. The contract between the parties, offered in evidence, is as follows: “Seller’s Copy- from Buyer. “Contract Ho. 0-5. May 24. “Sold by W. H. Edgar & Son, of Detroit, Michigan, to Imperial Ice Cream Co., of Clarksburg, W. Va., 550 bags of Java white sugar at 26.25 per hundred pounds, E. O. B. New York, plus ruling New York prepaid freight rates, net cash, payable in Detroit at bank specified below, on presentation of bills of lading supported by invoices. “Bags of approximately 224 pounds each. “Ex-Java afloat, due to arrive late July, early August, 1920. Sellers’ obligation as to delivery is completed upon presentation at the bank below specified copies of invoices supported by bills of lading properly endorsed.

Complete and final shipping instructions to be furnished in writing to seller at least fifteen days prior to time of shipment, with the exception that the seller reserves the right of routing shipments at his discretion. “Terms of Payment: Buyer agrees to open immediately a confirmed irrevocable banker’s credit for the entire amount of this contract to the order of W. H. Edgar & Son, with the Eirst and Old Detroit Hational Bank, Detroit, Michigan, subject to sellers’ original contract, and subject to strikes, fires, transportation and business conditions, and other extraneous causes which render performance commercially impracticable. “All additional duties, excise or other taxes hereafter levied on the raw or refined sugar necessary to ⁶³⁵ fill this contract at buyer’s expense in addition to price specified. “Buyer’s Signature: Imperial Ice Cream Co., “W. M. B. Sine. “Sellers’ Signature: W. II. Edgar & Son, W. P. Turner. “Broker: Willison, Earle Co.” There1 appears in the record a note which shows a. change in the contract in reference to the terms of payment. It is as follows: .“Rote. — The defendant admits for the purpose of the record that the sugars in question were shipped to the plaintiff E. O. B. bill of lading attached to sight draft instead of an irrevocable letter of credit. The method of payment was changed by agreement of the parties, and the letter of credit feature was eliminated by mutual consent.” There ivas a memorandum of sale made by the broker three days before the contract was dated, which differs somewhat from the contract, hut as the hitter was signed by the parties, we must be governed by that.

Three cars of sugar containing in the aggregate five hundred and fifty bags were shipped to the appellee under the contract — two to Cumberland and one to Wheeling, but only one of those1 shipped to Cumberland was opened or paid for by the appellee, who paid the appellants for the sugar in the two cars, and is endeavoring to recover back from them what it claims to have been improperly collected. The amounts claimed by the appellee are thus stated in the record: “Wheeling Plant, “Imperial lee Cream Company, “Wheeling, W. Ya., Sept. 3, 1920. “Sold to W. H. Edgar & Son, Detroit, Mich.: “Claim for shortage, off color, damp, wet and lumpy Java sugar. Your invoice dated Aug. 5, 1920, Car Ho. Sou. 133311.

Total involved weight, 183 ⁶³⁶ bags, 224 pounds, 40,992 pounds; total net weights received (affidavits enc.), 39,182%; total net shortage, 1,809% at 26%...................... $474.99 “To freight on shortage, New York to Wheeling, 27............................. 4.88 “To 3% war tax on freight on shortage..... .14 “To labor, weighing and marking, net weights on each sack, 20 hours................ 10.00 “To bags refused account off color, 2, 448 lbs.; to bags refused account lumpy, 11, 2,464 lbs.; to bags refused account damp, 50, 11,200 lbs.; net amount, 14,112 lbs., 26%............................... 3,704.40 “To freight, New York to Wheeling, on refused sugar, 14,112 lbs., 27............ 38.10 “To 3% war tax on freight on refused sugar 1.14 “To labor inspecting and sorting entire shipment, 12.50.......................... 6.00 $4,239.65 “Inspection and weights verified by Yincent H. Carr, Daub & Carr Co.; Michael <7. Brophy, G. J. Hoffman & Co.” The claim for the Cumberland car is substantially the same, except the net shortage is only 511 pounds, and the bags refused on account of color were 3, on account of being lumpy 4, and on account of being damp, 63. There is also a difference of $15.00 in the claim for labor and some difference in freight war tax, etc. The total claim for the Cumberland car was $4,323.64. It will be seen that the verdict rendered was for the exact sum of the two statements, and hence the action of Messrs.

Carr and Brophy becomes important, as will appear later. The appellants admitted that five bags of silgar, out of the 366, were not up to the specifications of the- contract as to color, and that there was a shortage of 2,330% pounds.- There -are twenty-five bills of exception in the record. The first ⁶³⁷ nineteen embrace rulings on the admissibility of evidence and motions in regard to them, the twentieth presents the rulings on the prayers, and the other five are special exceptions to certain prayers. While we will not attempt to discuss each of the exceptions separately, we will for the most part refer to them in their numerical order.

The first, second, and third can he considered together. In addition to the 550 bags of sirgar sold to the appellee by the appellants through their brokers, there was also sold to the Morris Grocery Company of Clarksburg, W. Va., Horner, Gaylord Company of Clarksburg, and other parties, some of the same shipment of sugar. The evidence shows that the sugar came to Yew York on a vessel named Chipania, and was unloaded in the Yew York harbor, Pier 32, Yorth River. What is spoken of as Baltimore & Ohio Lighter Yo. 120 carried fourteen hundred bags of the sugar from the steamship pier to Baltimore & Ohio Railroad Company docks at St. George, Yew York, and from thence they were shipped in cars as follows: 400 bags in two cars to the Morris Grocery Company and 250 bags to Horner, Gaylord Company; 184 bags to tbo appellee in one car, directed to Parkersburg; 183 bags in a car directed to Cumberland; and 183 bags in another car directed to Wheeling.

The one to Parkersburg was subsequently directed to be sent to Cumberland, but it was not opened or accepted by the appellee. As it is said that there were fourteen hundred bags carried on that lighter, there; was apparently another carload of two hundred bags, but we do not find anything in the record to show to whom it was sent. It is claimed by the appellee that the sugar it received was defective, some in color, some was damp, and some wet. The witnesses referred to in the first and thirel exceptions testified over the objection of the defendants as to the condition of the sugar received by those parties in Clarksburg, and the second exception was to the refusal of the court to strike out the testimony on that subject, offered in the first exception.

The court admitted the testimony on ⁶³⁸ the proffer of thé plaintiff to follow it up by showing that it was in the same coudition in Mew York. ■ The theory of the plaintiff in offering testimony as to the condition of the sugar received by the parties in Clarksburg was that, as all of it came from the same vessel to Mew York, was loaded on the same lighter, and carried to the Baltimore and Ohio docks, and that the condition of all on that lighter was of the same general character, it reflected on the condition of the sugar shipped to the appellee. Mr. Willison, of the firm of Willison, Earle Company, brokers at Clarksburg, was the first witness called by the plaintiff. He testified that he had sold for the Edgar Sugar House, in May, 1920, [Hava White Granulated Sugar.” The contract signed by the parties does not use the term “granulated” but while there was a good deal of discussion about it in the record and at the argument, it does not seem to be necessary for us to speak of it at length. The witness Willison, after some further objection and discussion, was asked, “What can you state to the jury about the condition of the sugar on its arrival ?” The court said: “This has reference to the condition of the sugar in Clarks-' burg, and they will have to follow that up by showing that it was in the same condition as when it arrived in Mew York.

That will be admitted.” The witness was then permitted to answer the question, and he said: “A. I examined a great many bags of both these lots of sugar of the Horner-Gaylord and the Morris Company, and I found some of the sugar to be mighty fine sugar. Some of it I found to be mighty fin,e free-running sugar; nobody could complain about that; nice, white granulated sugar in perfect merchantable condition. Some of the sugar was a little bit off-color; it was lumpy; very hard lumps; some of it was damp, of the balance, thii’tv or forty per cent, seemed extremely wet, so wet that water was running out of it, and a syruppy syrup could be seen on the floor. That was my examination of the sugar; they were practically identical in per cent and kinds.” ⁶³⁹ The overruling of the objection to that question, and permitting the witness to answer as above, constituted the ruling in the first bill of exceptions.

Then, after Mr. Willison was examined at some length, Mr. Morris was permitted to testify as to the condition of the sugar his company received, which was admitted subject to exception, and Mr. Gaylord testified as to the condition of that which his company received. That was presented by the third bill of exceptions. As we understand them, the objections of the defendants were two-fold. They contended that the sugar was sold f. o. b.

Yew York and hence evidence as to its condition elsewhere was not relevant or admissible, and that the evidence in reference to that sold the parties in Clarksburg was also inadmissible for other reasons. Passing for the moment the question of when the liability of the defendants ended, whether at Yew York or at the places to which the sugar was shipped, it is evident that it was very difficult to avoid injury to the defendants by having testimony in great detail, as it was, of the witnesses as to the condition of the sugar sold to other parties and delivered in Clarksburg. While testimony subsequently admitted does tend to show that some of the bags were dirty, some damp and wet, and that some of the sugar was damp, some wet and some very hard, and that the bags complained of were scattered throughout the piles on the docks and on the lighter, and were not separated in the cars, it would be impossible for the jury to say that the same proportion of defects existed throughout the different shipments. It is only necessary to compare the statements of the car unloaded at Cumberland with the one at Wheeling by the plaintiff, to show that the alleged defects in the sugar did not run evenly in the cars.

For example, in the Wheeling car the net shortage in weight was 1,809% pounds, while in the Cumberland car it was only 511 pounds; in the Wheeling car there were eleven bags refused because they were claimed to be lumpy, while there were only four in the Cumberland car; and in the Wheeling car there were fifty bags refused on ae ⁶⁴⁰ count of being clamp, while in the Cumberland car there were sixty-three bags refused for that reason. If the witnesses had been confined entirely to general conditions, to the effect that some of the bags were dirty, some of the sugar damp, etc., it might have been admissible on the theory that all of the sugar came out of the same ship and lighter, but we cannot agree with the appellee that there was no injury in permitting the witnesses to go into' such great detail as to the sugar which the two firms a.t Clarksburg received. Mr. Willison’s testimony above shows how radically different the various bags of sugar were1 — some were “mighty fine,” some “a litttle bit off color.” some was “lumpy, very hard lumps,” some of it damp1, “of the-balance, thirty or forty per cent seemed extremely wet.” Mr. Morris testified that something like thirty per cent, of what his company got was unmerchantable, and that the bags were nearly all short; that part of it was lumpy. “They were so hard that you could not mash them without using: a hammer, but -there was not a great deal of it in that condition.” And he went into- quite a full explanation of the condition of their sugar. He admitted that he had never before had any experience in buying imported sugar.

Mr. Gaylord said his firm had bought twelve hundred and fifty baga of that- sugar and he thought it came in about six cars. He testified that what they got “was wet, damp1 and dry, part of it. Part of it was very nice.” And he explained the conditions very fully. It will be noticed that the Horner-Gaylord Company bought twelve hundred and fifty bags, which added to' what the Morris Company and the appellee bought, far exceeded fourteen hundred bags, which were proven later to have been brought over on the Baltimore and Ohio lighter.

It is said in 10 R. C. L. 928: “It is well settled that if the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. It would be a narrow rule, and not conducive to the ends of justice to exclude it on the ground that, it did not afford full proof of ⁶⁴¹ the non-existence of the disputed fact. Evidence upon a collateral issue may he relevant, if the fact which it tends to establish will tend to prove or disprove the fact in issue.” The author cites in the notes Dougherty v. White, 2 Boyce (Del.) 316, which refers to Lee v. Tinges, 7 Md. 215, 236 ; and Brooke v. Winter, 39 Md. 505, 508 , amongst other cases. The author in 10 R. C. L. goes on to say: “But to render evidence of collateral facts competent, there must be some natural, necessary, or logical connection between them and the inference or result which they are designed to establish.” The evidence of the condition of the sugar purchased by these parties in Clarksburg doubtless did have a damaging effect on the defendants' before the jury.

It was introduced before there had been any evidence offered of the condition of the sugar in controversy and, while the order in which testimony is offered must be left largely to the parties, this evidence prepared the minds of the jurors for a ready belief that the appellants were engaged in furnishing bad lots of sugar. But no one could tell or form any definite idea of the amounts' of what the appellee called “defective” sugar, which it had received, by the testimony of the condition of the sugar sold to parties elsewhere'. While we would hesitate to reverse this verdict for error in these three exceptions', if there was nothing else, as there must be a reversal for other reasons, it is proper to say that the appellee should not be permitted to go into such details in reference to the sugar shipped to the two firms in Clarksburg. We do not agree with the contention of the appellants that, under the contract, they were not responsible for the condition of the sugar beyond Yew York.

It seems to us that the language of the contract itself clearly shows that the appellants’ obligation as to delivery was not ended at New York. It is said in 35 Cyc. 174: “Similarly, if the agreement is to sell goods f. o. b. at a designated place such place will ordinarily be regarded as the place of delivery; but the effect of the f. o. b. depends on the connection in which it is' used, and ⁶⁴² if used in connection with the words fixing the price only, it will not be construed as fixing the place of delivery.” In this case the language of the contract seems to indicate that the parties were using the term in fixing the price. The seller was to be entitled to 26.25 per hundred pounds f. o. b. New York, plus ruling Yew York prepaid freight rates.

That portion of the contract was providing for the cost of the sugar, and then further on, it referred to the question of delivery and said seller’s obligation as to delivery was not to be completed until copies of the invoices, and the bills of lading properly endorsed, were presented. The contract was changed from the irrevocable bankers’ credit at the bank named, so that the sugar was “shipped to the plaintiff f. o. b. bill of lading attached to sight