Gosman Ginger Ale Co. v. Keystone Bottle Manufacturing Co.

Thomas, J., delivered the opinion of the Court. On the 5th of February, 1917, the appellants, the Gosman Ginger Ale Company, a Maryland corporation, and William L. Straus, and the appellee, the Keystone Bottle Manufacturing Company, a corporation of Uniontown, Pennsylvania, ³⁶³ entered into the contract shown by the following order and acceptance: “February 5, 3917. “Keystone Bottle Mfg. Co., Inc., “TTniontown, Pa. “Gentlemen: “Enter our order for 1,500 gross flint, plain crown Sodas, machine made, average 16 ounce weight, and 15% ounce capacity to filling point. Price in bulk one thousand (1000) gross at $4.75 per gross, five hundred (500) gross at $5.00 per gross, f. o. b. factory, TTniontown, Pa., with the carload freight rate that is in force January 25th, 1917, allowed to Baltimore, Md. Terms, 30 days, or 1% cash in 10 days, and these terms are applicable from date of invoice.

Shipment via Baltimore and Ohio R. R. Company, in approximately 250 gross cars, first car as soon as possible, second car 30 days thereafter, third car 30 days after second shipment, fourth car 30 days after third shipment, fifth car 30 days after fourth shipment, sixth car 30 days after fifth shipment. We understand, of course, that date of shipments are approximate. “Payment of this account is guaranteed by Mr. W. L. Straus, of the Monumental Brewing Co., of Baltimore, Md., and for further reference, refer to the Rational Marine Bank, Rational Exchange Bank, Cahn-Ooblens & Co., Monumental Brewing Co., Joel Gutman Co., all of the above are of Baltimore, Md. “Shipments to be made to the Gosman Ginger Ale Co., Baltimore, Md. “Yours very truly, “(Signed) Gosman Ginger Ale Co., “W. L. Straus, Prest. “Accepted: “Keystone Bottle Mfg. Co., Inc., “W. H. Smart, Prest. “I personally guarantee payment of above account in accordance with the terms set forth herein above. “Wm. L. Straus.” ³⁶⁴ The sale of bottles referred to in said contract was negotiated by Mr. Oscar Hamburger, the agent of the appellee in Baltimore City, and shortly after the date thereof he submitted to the appellants samples of the bottles to be furnished, which had been sent to him by the appellee.

These samples were not satisfactory to Mr. Straus, the president of the Ginger Ale Company, because all of them did not weigh sixteen ounces. Mr. Hamburger contended that the terms of the contract which required the bottles to be of “average 16 ounce weight” meant, according to “a general custom of the trade,” bottles weighing between fifteen and sixteen ounces; and that the samples complied with the contract; that if the appellants insisted upon bottles weighing not less than sixteen ounces, the contract should specify an average weight of seventeen ounces, which would cost more than the “average 16 ounce weight” bottles. The appellee also wrote the appellants as follows: “Mar. 20, T7. “Mr. W. L. Straus, Pres., “Gosman Ginger Ale Co., “Baltimore, Md. “Dear Sir—Mr. Oscar Hamburger, who has had charge of the order of bottles that we have for you, has written us under recent rate, fin your approving of the sample lot of the one-half (%) gross you stipulate that the bottles must be 16 oz. down weight, and if such, all would be satisfactory, etc.’ “We have written him in the meantime, ‘that in order to make all bottles 16 oz. down weight we would necessarily have to have a base weight of 17 ounces, and that the additional ounce required would be at an extra cost of twenty-five (25) cents per gross,’ etc. But at the same time the sample bottle sent you, while there may have been a slight variation in weight, are the regulation 16 oz. weight bottle. He, Mr. Hamburger, in turn writes us under date of the 19th, that since receipt of our communication he had been trying to get in communication with you in order to impart the ³⁶⁵ circumstances, but bad failed to do so, and lie was incidentally called out of tbe city and would be absent for tbe week and suggest tbat we communicate with you direct in order to get a prompt decision in tbe matter, as this is most important, both the promptness and decision referred to.

We do not have any too much time to complete your order and under these, treacherous conditions Re—Supplies, etc., it is most imperative that we have your approval by return mail if at all possible. Tbe question is, if bottles are required to be 16 oz. 'down weight we must have a 17 ounce base weight from which to work, and this incurs an additional cost of twenty-five (25) cents per gross. Of course, we understand perfectly, that the bottles must hold average 16 oz. brimful or 15% oz. to filling point. “We again wish to impress you that delays are most dangerous and we would kindly ask you to give us an immediate response. If regulation 16 oz. bottle will meet with your approval, we can proceed promptly with the order and soon have a car ready for shipment, but again reiterate that if you exact 16 oz. down weight we must have the 17 ounce base. “Respectfully yours, “Keystone Bottle Mfg.

Co.” Mr. Straus insisted, however, that nothing less than a sixteen ounce bottle would he satisfactory, and also refused to pay more than the price agreed upon. Accordingly other samples of bottles were sent to and approved by the appellants, and the matter was finally adjusted in accordance with. Mr. Straus’ demands by the appellee agreeing, through Mr. Hamburger, to furnish under the contract bottles of “17 ounce average” weight. As evidence of the adjustment, and of the necessary modification of the original contract, the appellants, sent Mr. Hamburger the following letters: ³⁶⁶ “Baltimore, Md., March 29th, 1917. “Oscar Hamburger, “302 Home Bank Bldg., “City. “Bear Sir—We enclose letter to your principals, the Keystone Bottle Mfg.

Co., Inc., of Hniontown. Will .you kindly note same and forward to them? “Yours very truly, “The Gosman Ginger Ale Co.” “Baltimore, Md., March 29, 1917. “Keystone Bottle Mfg. Co., Inc., “Hniontown, Pa. “Gentlemen—As per interview of the 27th with Mr. Hamburger, we beg to advise that you can make shipments applying to our contract order. “We understand that the bottles are to be same shape as samples submitted, 16 oz. average capacity when brimful, and,we can then adjust our filling point. “Weight of bottle is to be 17 oz. average, and we understand that this means about 16% to 17 ozs., and on this basis all of your shipments will be accepted. “Yours very truly, “The Gosman Ginger Ale Co., “H. P. Coffin.” The letter to the appellee was forwarded, to it by Mr. Hamburger, who states that about a week after the date of the letter Mr. Straus asked him over the phone if the appellee was going to fill the order, and that he replied “assuredly,” .and that the appellee had “made the modifications^ and were going along with the order.” Mr. Straus’ version of that conversation is that he told Mr. Hamburger that he would like to have a prompt shipment of the bottles, and Mr. Hamburger said to him “it shall be done, I will see to it.” On the 7th of June, 1917, the appellee made the first shipment of bottles under the contract to the Gosman Ginger Ale ■Oo., and wrote that company on the 9th as follows: ³⁶⁷ “Uniontown, Pa., June 9, 1917. “Gosman Ginger Ale Co., “Baltimore, Md. “Gentlemen: Attention of ‘Mr. W. L. Straus.’. “We have shipped you a car of Ginger Ale Bottles, applying to your contract and trust that same will arrive promptly. “We will apreciate your kindness if you will discount our invoice less 1% ten days from date of shipment, as we are required to pay spot cash for all raw materials, etc., entered into the manufacture of Bottles and even under these strenuous circumstances we are most fortunate to procure material and likewise labor. “On account of changing molds to conform with ideas mutually agreed upon and of which you are familiar, we were not in position to forward the first car at an earlier date, and it is not necessary to apprise you in detail of the causes and circumstances of the delay because you are familiar with the conditions existing in all lines. “Your contract calls for one car per month, and this would mean that you would receive another car in July. “We close in August; therefore, shipments could not be resumed until some time in September. However, we want to take care of your requirements to the best of our ability, and we ask, if it is agreeable, to ship additional cars, two or three, more or less, before-August 1st, 1917. “An immediate reply is necessary, because any delay will change our plans, so will expect your response by return mail, for which we thank you in advance. “Yours very truly, “Keystone Bottle Mfg.

Co.” As soon as the Gosman Ginger Ale Company received the invoice and bill of lading' for the car Mr. Coffin, the bookkeeper of the company, telegrap-ghed Mr. Straus, who- was in Cleveland, Ohio, and upon receiving a telegram from him to ³⁶⁸ reject the bottles, he wrote Mr. Hamburger on the 9th of •June as follows: “June 9th, 1917. “Mr. Oscar Hamburger, “Baltimore, Md. “Dear Sir: “We enclose invoice and bill of lading for a carload of bottles from the Keystone Bottle Mfg. Company, Dhiontown, Pa., which we can not accept. “The writer has been trying to reach you by phone regarding this, but failed to do so, and we are sending you the papers so that you may make whatever disposition of the car you desire. “Yours truly, “The Gosman Ginger Ale Co.” Mr. Coffin testified, that Mr. Hamburger*, after receiving the above letter, called him up and asked why the invoice and bill of lading were returned, and that he told Mr. Hamburger “that he had been instructed by Mr. Straus to tell him that owing to the fact that so long a time had gone by and nothing had been heard from him or the factory the Gos-man Ginger Ale Company considered the contract cancelled and, fotr that reason, had met its requirements elsewhere.” He further testified that in accordance with instructions from Mr. Straus he wrote the appellee, in reply to its letter of the '9th of June, the following letter, which Mr. Straus says he -dictated to Mr. Coffin over the phone from Cleveland: “June 11th, 1917. “Keystone Bottle Co., “Hniontown, Pa. “Gentlemen: “In reply to yours of June 9th, we would say that, upon receipt of your invoice and bill of lading for carload of bottles, after endeavoring in vain to reach your representative, Mr. 'Oscar Hamburger’, by phone, we returned the papers to him, advising him that we could not receive the shipment. Since the latter part of March, we have heard absolutely nothing from you ³⁶⁹ regarding the bottles, and as it is necessary for us to have bottles we were obliged to purchase in the open market. Had you advised us before shipment of your intention to ship, we could have taken the matter up with you at that time, so under the circumstances we turned the papers over to your representative as promptly as possible, so that you could make disposition of the car which was shipped without even asking for billing instructions.

We feel that it was not our fault that the bottles first submitted to us did not fulfill the contract. We have advised Mr. Hamburger, as your representative, that we had considered the contract cancelled. “Yours very truly, “The Gosman Ginger Ale Co.'” William H. Smart, the president of the appellee, testified that the appellee’s factory is in Uniontown, Pennsylvania, and that upon receipt of the Gosntan Ginger Ale Company’s letter of March 29th, containing the change made in the original contract, the appellee immediately expressed the molds to the mold maker, Charles Theopholus & Company, in Philadelphia, which is unusual owing to the weight of the molds, which are castriron molds-, to be remode-le-d and enlarged in order to make up- the diffe-rnce in “the average ounce weight” of the bottles, and requested that company to expedite the changes and to hurry the shipment back “with all possible haste”; that there was some little delay in getting them back, and as soon as the appellee got the molds back it made the first shipment of bottles “just as- promptly as possible.” He further testified that the first intimation he had of an attempt to cancel the contract was o-n June 9th or 11th, when he happened to ho in Baltimore o-n his way home and stopped at Mr. Hamburger’s office, and was told of the return o-f the invoice and hill of lading; that he then tried to get in touch with Mr. Straus or the Gosman Ginger Ale Co-mp-any but failed, and that about three days later he got Mr. Straus over the phone from Mr. Hamburger’s office and had the fol ³⁷⁰ lowing conversation with him: “I asked Mr. Straus why he had refused to take in the car of bottles which had been shipped and which I understood were in the railroad yard at that time; why he said there had been such a long- delay in the shipment of the bottles that he had gone on the outside, or the outside market, and bought the bottles elsewhere; he said he did not think he was going to get his bottles from us; I said, this is a peculiar method of handling this situation, how! does it come you did not apprise us of the fact; he said, I did try to reach Mr. Hamburger on various occasions but I was unable to do so; I said, Why, I do not see that Mr. Hamburger has anything to do with this matter whatever as to the delivery of the bottles; the contract was with us, the Keystone Bottle Co., and we were in Uniontown, Pennsylvania; you knew where we were and could have reached us by mail or could have reached us by telephone or telegram; he said, well, I may have been a little remiss in that respect and under the circumstances I will take in that car, but I will not taire any more bottles now; incidentially I said, Mr. Straus, during the interim of the controversy between you and-Mr. Hamburger regarding the change of the contract we had accumulated a carload of 16 ounce Weight bottles, known in the trade as 16 ounce weight bottles and we would like to have you taire that car in too in addition to your contract; he said, I can not take in any more bottles now, not at present, I am overloaded; I said, I just mention this now, we have this car of 16 ounce bottles and I would like for you to taire them in at your convenience; he said he could not t-alre in any now, he could not take any more on his contract now. Pie did not say anything about not taking the rest of the contract at all. After I got home, I received his letter of June 11th, and since then he had never taken any more bottles, though he did take and pay for the first shipment.

The carload of 16 ounce bottles referred to in the telephone conversation were made up' during; the interval of Mr. Hamburger’s discussion with Mr. Straus in regard to the change in the terms of the contract in regard to the weight of the bottles,. ³⁷¹ ■which resulted in the letter of March 29th.” Mr. Coffin also testified “that neither the Gosman Ginger Ale Company nor Mr. Straus had ever complained of the quality, capacity or Weight of the carload of hot,ties, which they accepted and paid for, and that he had not at any time agreed to release the defendants from their obligation to- take the balance under the contract. That the reference in the letter of June 9 th, 1917, from the Keystone Bottle Manufacturing Company to ‘causes and circumstances of the delay’ alluded to the scarcity of labor in molding shops, generally, owing to the laborers and mechanics going to munition factories,, and the consequent delay in the remodeling of the molds; that the United States declared War April 6, 1917, a few days after March 29th, and delays in transportation were also common at that time, and the first shipment was made as soon as possible under the circumstances. That the plaintiff was, ready, able and willing to deliver the remainder of the fifteen hundred gross in accordance with the terms of the contract, that the