Phillips Sheet & Tin Plate Co. v. W. W. Boyer & Co.

Boyd, C. J., delivered the opinion of the Court. The appellees sued the appellant on a contract dated Dec. 3rd, 1915, by which the appellant agreed to sell and the appellees agreed to buy 5,000 base boxes of tin plate, of which the appellant only delivered 2,923 boxes and refused to deliver 2,077 boxes. A verdict for $2,849.38 was obtained by the appellees, and this appeal is froan the judgment entered thereon. There are thirty-four bills of exception in the record—the last one embracing the rulings on the prayers, three of which were granted for the plaintiffs and thirteen offered by the defendant were rejected, and its special exceptions to each .of those prayers of the plaintiffs were overruled.' The provisions of the contract particularly-involved in this appeal are the following: “Time of Delivery—In approximately equal monthly quantities; each month’s delivery to be treated and considered as a separate contract during the year 1916.

Specifications—To be given at least 60 days in advance of shipping date.” The price named, was “$3.50 f. o. b. mill.” The appellant is a manufacturer—having its general office and one of its rolling, mills at Weirton, W. Va., and it had a selling agency in Philadelphia, under the management of H. M. Davis, who was in the habit of taking the orders personally from the appellees, who are makers of tin cans and packers of canned goods in Baltimore., The parties- had been dealing with each other for about five years. Edmund O. White, a member of the firm of W. W. Boyer & Co., appellees, was the first witness called. While he was on the stand the plaintiffs offered in evidence a letter to- them dated December 14, 1915, signed in the name of the appel ¹²¹ lant by H. M. Davis, another dated January 11, 1916, signed in the same way, one of March 3, 1916, from the appellees to the company, at Weirton, W. Va., and then one from the appellant, by George Mendell, “Manager Order Dept.,” dated March 6, 1916. The first exception was to permitting the witness to. state why he did not make any reply to- the letter last referred to.

He said, “I didn’t see any necessity of replying.” And the second was to the question, “They offered you deliveries in August?,” to which he replied: “We couldn’t wait until August, and September for the plate. We needed the plate before that.” Without now setting out those letters, it is. sufficient to say there was no reversible error in either of those exceptions. The theory of the appellant is that if there was any breach of the contract on its part, it was on April 19, 1916, as shown by a letter of that date, and that hence the letters referred to in the bills of exception from the third to the twenty-ninth, inclusive, all of which were after April 19th, were irrelevant, immaterial or calculated to mislead the jury. We can not undertake to discuss all of them separately, and we will now only say that inasmuch as the appellees claim that the appellant waived the provision in the contract as to furnishing specifications, upon which the appellant relies for its right to refuse to furnish the 2,077 boxes, or is estopped to set up that defense, some of those letters were material and relevant, and we would hesitate to. reverse the judgment for error, if any, in admitting the others.

No reversible error appears in the rulings in the 30th, 31st and 32nd exceptions, aa we can not see how any injury could have been done by those rulings, especially when the answers to the 30th and 32nd axe considered. The thirty-third can be more conveniently considered in connection with the prayers. The language in the contract which we have quoted above would seem to clearly indicate that the parties intended that the 5,000 boxes of tin plate should be delivered in instalments “in approximately equal monthly quantities” during the year 1916, and that specifications should be furnished the seller ¹²² by the buyer “at least sixty days in advance of shipping date” fixed by the purchasers. Although the specifications could not have been given in time for shipments in January, as the contract was not made until December 3, 1915, they could have been given in time for an early shipment in February, and have been continued until the end of the year.

It was not intended that those for each shipment should be precisely for the same proportion of the 5,000' boxes, as the contract was “in approximately equal monthly quantities,” and it would ’have been impracticable, if not impossible, to make said shipments in precisely the same amount, hut the shipments could have been made to comply with the spirit of the contract by adding something like the eleventh part of a month’s supply to each month’s specifications. There can be found no possible justification in tbe contract itself for the purchasers refusing to furnish specifications until they saw proper to do so>, and then sue for damages for refusal to furnish the boxes that were to he delivered in the early part of the year. If they could do so for four or five months, why not wait until the last sixty days and require the seller to furnish all at once ? The provisions of the contract in reference to “time of delivery” and “specifications” would be rendered useless if that could he done—particularly that part which said “in approximately equal monthly quantities.” , The question, then, is whether the seller waived those provisions, or is estopped from relying on them.

While the contract is dated December 3rd, the record shows that the seller in ,a letter of .December 4th enclosed two copies of it to he signed by the purchasers, one copy to he retained by the latter and the other to he returned to the seller. On December 14th the seller wrote to the purchaser: “Owing to the unprecedented demand for tin plate which has caused a congestion at the mill such as has never heretofore existed, we would suggest and try to impress upon you the necessity of letting us have specifications now, against your contract, for whatever material you will require for shipment during Eeb ¹²³ ruary and March. Ye are bringing this to your attention now for several reasons: First: You know there is a clause in the contract to the effect that specifications must he furnished sixty days prior to time of shipment desired. Second: Specifications are placed on the mill in the order received.

Third: If you delay, you may he disappointed in getting the material when you want it. Wo will exert ourselves to the utmost to take care of your requirements if you will assist us to the extent of giving us specifications sixty days in advance of shipping date. Sincerely trusting that we may have your co-operation during 1936, we aro, Yery truly yours.” Ho reply was made to that, and the seller on January 11th, 1916, wrote as follows: “We again beg to advise you that the steel and tin plate situation has reached such an acute stage, owing to the unprecedented demand upon all mills, it will be to your interest to specify for as remote delivery as you can possibly estimate your requirements. Specifications have already come to us in such volume that all of our mills will be taxed to capacity for several weeks, and if you do not specify promptly, we fear you will be sorely disappointed by not having plate at the time you will require it.” Ho notice was taken of that until March 3rd, seven weeks, when the purchasers Wrote to the seller: “Will you please advise us promptly the earliest date you can make shipment of tin plates we may he able to specify within the next week or two ?” In reply to that the seller wrote on March 6th: “Replying to yonrs of March 3rd, would advise that on specifications we are receiving today our promise of delivery is for forwarding late August or early September, and we could make this delivery if specifications were mailed to us promptly.

Conditions are ¹²⁴ changing rapidly, and if you desire" shipment made in accordance with above we should hate advice by return mail.” Ho reply was made to that, and a member of the firm of W. W. Boyer & Co. testified that they did not reply to it for reasons stated above. It will be remembered, however, that they had not yet furnished any specifications, and even if the seller was to be held strictly to the terms of the contract, if the appellees had furnished the specifications within the week or two after their letter of March 3rd, as the inquiry suggested, they could not have required the seller to furnish the boxes until sometime after sixty days which would have run into May. On March 10th the seller wrote as follows: “Referring to your contract Ho. 1352 we again wish to call your attention to the abnormal demand for tin plate and that at the present time our mills are promising deliveries on new specifications some time late August or early September. If it is your intention to specify against your contract for delivery during that period, we would suggest that you do so without furtber delay. .Trusting that you will give this matter prompt attention, we are,” etc. On March 11th the purchasers replied: “Your favor of the 10th inst. received with reference to our sending you specifications on contract Ho.. 1352, and we carefully note contents.

This matter is now having our attention, and we hope to he able to send you some specifications at an early date.” notwithstanding what was said in that letter, written over three months after the contract was made, the purchasers did not send specifications, and the seller wrote on April 19th the following letter: “Referring once more, if you please, to your contract (our number 1352) which calls for 5,000 boxes tin plate to be specified for in approximately equal monthly quantities, sixty days in advance of shipping ¹²⁵ dates, we beg to call your attention to tbe fact that according to the terms of tbe contract you have forfeited five months’ quota on account of your failure to specify, thus leaving a balance of but 2,920’ base boxes to which you are entitled for shipment during the balance of the year beginning with the month of June, provided we have specifications for the June quota prior to May 1st.” That was sent by H. M. Davis from the Philadelphia office. It seems to have brought some life into the purchasers with reference to the contract, and from that time on they became the aggressive parties. The next day, April 20th, they replied: “Your letter of the 19th received signed H. M. Davis, initialed M., and contents noted. The letter we take it is a general communication and not intended to apply to us, as we have never been required by yourselves or any other maker of tin plate to take our plate out in equal monthly instalments.

We have been given by you and others the entire year to take out our contracts, and the present year has not been made any exception. “We wrote Weirton as early as March 3rd asking how soon you could make delivery of specifications to be sent the next few days. Mr. Mendell wrote' us under date of March 6th that your promise of delivery was for forwarding late August or early September, about six months’ delivery. This was too far off, and we had to specify where we could get earlier delivery, fifteen weeks to four months. We then decided to take our contract with you in the last quarter, and if you desire us to give specifications for the 5,000 boxes in the next few days we will do so, although it would suit us better to specify somewhat later.” The concluding paragraph shows how dangerous, it is, to depart from at least the spirit, to say nothing of the letter of a contract—“We then decided to take our contract with you ¹²⁶ in the last quarter,” etc.—and although they say they then decided to do that, they did not seem to think it incumbent on them to even inform the seller of their decision.

It was not until the notice of a forfeiture that they were moved to announce their decision. Although they said that the provision of delivery in late August or early September, made in the seller’s letter of March 6th, was too far off, and they decided “to take our contract with you in the last quarter,” and said “if you desire us to give specifications for the 5,000 boxes in the next few days we will do so, although it would suit us better to specify somewhat later.” On April 28th they wrote to enter their specifications on account of the contract for' 1,870 packages^ which counsel for the plaintiffs said, as stated in the record, “are equivalent to 2,923 base boxes.” Those specifications were for delivery June 30th, July 30th, August 30th, September 15th, October 1st and November 30th. By understanding of counsel announced at the trial no point was. made as to the three boxes, and the letter was treated as being a specification for 2,920 base boxes, which is the number the seller claimed was all it was bound to deliver, as shown by the letter of April 19th declaring the forfeiture for previous months. A letter from the seller dated April 28th—being of the same date as the specifications and the two probably having crossed in the mails—referred to. the letter of Mr. Davis of April, 19th, ratified the latter and concluded as follows: “The demand for tin plate during this year has been and continues to be enormous, and while in former years, in the absence of such a condition, contracts were treated with more or less leniency, such treatment is out of the question now, for our friends must live up strictly to their contracts, if we are to have any chance at all of performing our part of the obligation.

The manufacturers from whom we purchase our raw material allow us absolutely no leeway whatever, and we must perforce take the same position with our customers.” ¹²⁷ Even then no specifications were furnished for the 2,077 boxes until the letter of October 27tb, which the appellees claim were such, hut they did furnish them for the 2,920 (2,923, as explained above) boxes which the seller notified them were all they were required to furnish. On May 4th the purchasers wrote that they had that day wired the seller about an acknowledgment of the specifications (which were dated April 28th) and acknowledged receipt of a telegram that it was mailed. That was dated May 2nd, the dates above referred to were placed under a