Hazel Hill Canning Co. v. Roberts Bros.

³⁰⁷ Boyd, C. J., delivered the opinion of the Court. The appellant sued the appellees for an alleged breach of a contract, but a verdict was rendered for the appellees under instructions of the Court, and this appeal is, from the judgment entered thereon. The sale was by Henry Zoller & Co., merchandise brokers, and the following memorandum was made: “Baltimore, Md., June 19, 1913. “Sold for account of the Hazel Hill Canning Oo., Inc., Fredericksburg, Ya., to Messrs. Roberts Bros., Balto., Md., 5,000 Cases Standard Ho. 3 Tomatoes, ‘Merry Mill’ Brand, at 80c. per dozen f. o. b.

Fredericksburg, Ya., 1913 Packing, to be shipped during the packing season. Usual six months’ guarantee against leaks and swells. Goods guaranteed to conform with the Hational Pure Food Law, June 30th, 1906. Buyers to have the privilege of using their own labels, being allowed 90e. per 1,000 for same and Buyers’ labels to be put on free of cost to Buyers. “Terms: Cash, less 1 %%, 10 days. “Ship await instructions.” That was accepted by Roberts Brothers and signed by the brokers.

Three exceptions were taken to the rulings on the evidence and a fourth to the granting of two prayers, that the plaintiff was not entitled to recover—the only material difference between them being that the first did not refer to the pleadings, while the second did. We will first determine whether they were properly granted. J. J. Fisher, the secretary of the plaintiff, testified that the “packing season begins about August and ends about latter part of October. As goods are packed we allow from two to four weeks to develop swells or leaks, after which they label the goods and put them in cases; that the Hazel Hill Canning Company proceeded to comply with said contract and received instructions in regard to- it from the defendants.” On September 10th, 1913, Roberts Brothers wrote to the Canning Company: “We are shipping you today by boat ³⁰⁸ to Fredericksburg, Va., labels to- label up- our p-urohase of tomatoes.” That was acknowledged by a letter dated the next day, in which the Canning Company said: “We would appreciate it if you would be good enough to give us shipping instructions.” On September 13th, Roberts Brothers wrote to the Canning Company: “We are sending you today instructions for three cars which amounts to 1,800 cases.

You will kindly ship these out and by the time that you get them out you will kindly ask us for more instructions, and we will supply you with them * * * We are sending you moré labels today by the boat.” The instructions enclosed in that’ letter were as follows: “Please ship via M. D. & V. Ry. Co. c. o. If. & If. T. Co., at Balto., c. o.

Kanawha Des., c. o. Vandalia to Hulmán & Go., Terre Haute, Ind., Big £R’ Brand. . Consign from Roberts Bros., 1,800 cases Big £R’ Brand 3 lb. Tomatoes.

Ship these in three cars of 600cs. in each car. Be sure and follow the above instructions to the letter. “Contract Ho..... Roberts Brothers. “Important—Mail Bill of Lading to this office promptly.” On September 15th, the Canning Company acknowledged receipt of the shipping instructions, and said: “Kindly give us a little fuller instructions, as we are at a loss to understand just how we can manage to ship in three ears of 600 cs. each car, when the shipment is to- go part way by boat.” To that Roberts Brothers replied on September 16th: “Yours received and noted. You can just put 600 cases on the steamer which makes a minimum car, and let them come along, or you can put two 600-case lots aboard and make out the B-ls as you would to ship them by the car, showing the consignee and destination, but you will kindly not break either one of these lots, you must (send) 600 cases in each shipment.

You can ship one, two or three cars at the same time aboard the boat, if you see proper, but you want sep ³⁰⁹ arate B-ls and the consignee and destination on each one of the 600 case lots.” Mr. Fisher testified that after receiving the shipping instructions he shipped 600 cases of tomatoes, and he identified the bill of lading which was offered in evidence, “and is a straight bill of lading—original—not negotiable, issued at Fredericksburg, Va., on September 26th, 1913, by the Maryland, Delaware and Virginia Bailway Company, showing the receipt of 600 eases of Big ‘B’ Brand tomatoes No. 3 from Boberts Brothers, to be delivered to Hulmán & Company, Terre Haute, Indiana. Boute M. D. & V. By. Co., c. o. M. & M. T. Co., at Baltimore, c. o: Kanawha Des., c. o.

Vandalia.” It was signed Boberts Brothers, Shipper, per Henry Warden, and also by the agent of the carrier. On September 26th the Canning Company wrote to Boberts Brothers, stating that following their instructions they had forwarded that day the tomatoes, and added: “Being much in need of funds, wei have today made a draft on you for the amount, less 1 %% ten days, and have attached Bill of Lading to the draft, with instructions for the latter to be delivered to you upon the acceptance of the draft.” The draft was for $945.60, payable ten days after sight to the order of Planters National Bank, bill of lading attached. On the back of it, when offered in evidence, were the words: “Goods not purchased under these terms. Writing,” signed Boberts.

Bros. It was admitted that the amount of the draft was for the contract selling price of the 600 cases, less the 1 provided for in the contract, but did not allow the 90 cents per thousand for the labels. On September1 26th, Boberts Brothers wrote the Canning Company, acknowledging its letter of that date, and added: “We have returned the draft together with the B-L owing to the fact that the goods were not purchased upon these terms. We don’t have to buy goods draft attached to B-L.” On September 2'Tth the Canning Company replied as follows : ³¹⁰ “We have your favor of the 26th instant, returning our draft not accepted by you.

The explanation in your letter is not that noted on the draft. That in your letter may be correct, that you do not have to purchase goods with draft attached to bill of lading, but that noted on the draft is not correct. The goods were purchased under these exact terms. Our contract calls for cash in ten days, or a discount of 1 Vz% at any time within ten days.

We have exercised our option to take the cash at 1% per cent. Such being the case, and your refusal being a repudiation of your contract, we have wired the M. D. & Y. Ry. Co. as follows: Hold subject to our order 600 cases canned tomatoes shipped Roberts Bros, by Henry Warden, Fredericksburg, to Hulmán & Co., Terre Haute, Ind.” On. September 30th, the Canning Company also wrote as follows: “Enclosed please find the original Bill of Lading for 600 cases of Big R Brand Ho. 3 tomatoes shipped to Hulmán & Co., Terre Haute, Indiana.” Mr. Fisher testified that the bill of lading enclosed in that letter was the one offered in evidence, and was then unrestricted.

He then identified the following letter from Roberto Brothers to his company, dated September 30th, 1913: “Referring to the car of tomatoes that you shipped on our contract, we note that you shipped the same draft attached to B-L. As the goods were not bought this way, therefore we did not honor the draft. “We further note that you say that you wired the Md. D. & Y. Rwy. to hold subject to your order 600 cases canned tomatoes shipped to Roberts Bros, by Henry Warden, to Hulmán & Co., Terre Haute, Ind. This matter is entirely up to you. We suppose that you have refused to ship Hulmán & Co., Terre Haute, Ind., as per our instructions, so you will kindly return the shipping instructions that we gave you, please, as these people are in a hurry for the goods and we have sent the same down to one of our other factories ³¹¹ for shipment. So you will kindly make no further shipments, as we note that you have cancelled the contract.” On October 2nd, Roberts Brothers wrote: “Yours received with enclosed B-L covering ear of tomatoes that you shipped for our account to Hulmán & Oo., Terre Haute, Ind.

We are compelled to return this as we have made other arrangements for shipping these goods. You did not ship the goods according to contract. Erom the tone of your letter we considered the contract cancelled and we have already confirmed the cancellation. We are sorry that you treated us this way.

So we herewith return you your B-L as we can not use the goods.” On October' 3rd the Canning Company returned the bill of lading to Roberts Brothers, and stated that: “Until it developed from correspondence that you thought the terms of payment were different from what we took them to be, your refusal to honor our draft left us no alternative but to stop the goods in transit until it could be definitely ascertained what the trouble was with the draft. We yielded our views as to terms, accepting your interpretation of that portion of the Sale Memorandum and promptly released the goods that had been shipped. We therefore have to insist upon your making payment. These goods have gone forward on your order, labelled and stenciled according to your directions.

We have a considerable portion of the balance of the quantity called for by the contract labeled and stenciled under your instructions. These facts sufficiently answer your suggestion that we are repudiating our contract. These goods go forward on what you have now explained as your construction of the terms of payment.” ³¹² So far as appears from the record, that letter gave the appellees the first information that the appellant had “released the goods,” and that they had gone forward, although according to the evidence that had been done on September 29th. The subsequent correspondence shows that the Canning Company was demanding performance of the contract and that' Roberts Brothers claimed that the company had treated the contract as at an end, and they had affirmed its cancellation..

It is clear that tire Canning Company had no authority under the contract to require Roberts Brothers to accept the draft as a condition precedent to obtaining possession of the bill of lading. There is no such provision in the contract, and there is nothing in the record