Robinson v. Barteldes Seed Co.

Pattison, J., delivered the opinion of the Court. The appeal in this case is from a judgment recovered by the appellee, The Barteldes Seed Company, a corporation of Colorado, doing business in the State of Kansas, against the appellants, William E. Robinson and Alphonso P. Robinson, partners trading as W. E. Robinson & Company, dealers in seed corn and other seed in Bel Air, Maryland. A circular, issued by the appellee on the 27th day of December*, 1917, offering for sale several varieties, of seeds, and containing an item of “thirty thousand pounds of Sto ⁴⁸⁸ well’s Evergreen at 18c per pound,” came to the notice of the appellants, and on December 31st of the same year the appellants wired the appellee: “Accept thirty thousand pounds Stowell’s Evergreen, offer circular twenty-seventh. Wire confirmation.

What is germination test?” On the same day, December 31st, the appellee both wired and wrote appellants in reply to said telegram. The appellee in its telegram stated: “Booked order. Corn not in yet. Samples tested seventy-five to eighty per cent.” The letter written by it at the same time is as follows: “We have your message accepting 30,000 pounds of Stowell’s Evergreen at 18c. per pound, f. o. b.

Lawrence, bags extra. We have wired you our acceptance and booked order. This corn is country run and will be recleaned on our cleaners, but will not be hand-picked. The samples tested for us between 75 and 80, and this is as good corn as we can get this year.

Most of the corn germinates from 0 to 50 per cent. As soon as this corn has been milled and is ready for shipment we will mail you samples, so you can see what we are shipping. We may be able to offer some more of this corn later on.” The president of the appellee company, when asked by his counsel if he received “a confirmation of the telegraphic order from W. E. Robinson & Company,” stated that he did and, when requested, produced the following letter: “Bel Air, Md., Jan. 3rd, 1918. “(All quotations subject to our confirmation.) “Messrs. Barteldes Seed Co., Lawrence, Kansas. “Gentlemen: “Have wired you as follows: “ Accept thirty thousand pounds Stowell’s Evergreen, offered circular twenty-seventh.

Wire confirmation. What is germination test?’ “Have your acceptance as follows: ⁴⁸⁹ “ Rooked order. Corn not in yet. Samples tested seventy-five to eighty per cent.’ “And enclosed contract.

Please send us samples of this seed corn and hold subject to our order. “Yours very truly, “W. E. Robinson & Company.” The contract enclosed in the letter was as follows: “Bel Air, Md., Jan. 3rd, 1918. “Sold to W. E. Robinson & Company, Bel Air, Maryland, for account of Barteldes Seed Co., Lawrence, Kansas, 30,000 lbs. Stowell’s Evergreen Seed Corn at 18c. per lb. “Terms: “Delivered f. o. b. Lawrence, Kansas. “Shipment: As ordered out; await shipping instructions. “APR — B. W. E. Robinson & Co., Brokers.” In answer to the appellee’s letter, the appellants on January 5th wrote the appellee, saying: “We have yours of the 31st. Just as soon as the corn is ready for shipment please advise us.

Please send as large a sample as possible, as we can sell from it.” The appellants, with the view of buying more seed corn of the appellee, wired it on the 24th day of January, 1918, saying : “Wire full list of all sugar corn can offer and germination test.” The appellee on the same day replied thereto saying: “Have unsold two hundred bushels each Bantam and Stowell’s at twenty-five.” To this telegram, the appellants, on January 25th, wired the appellee: “Accept two hundred bushels Stowell’s,” and at the same time wrote it the following letter: ⁴⁹⁰ “We have your wire reading as follows: ‘Have unsold two hundred bushels each Bantam and Stow-ell’s at twenty-five.’ Have wired you as follows: ‘Accept two hundred bushels Stowell’s,’ and herewith confirm and enclose contract.” The enclosed contract was as follows: Bel Air, lid., Jan. 25, 1918. “Sold to W. E. Bobinson & Co., Bel Air, lid., for shipment of Barteldes Seed Compnay, Lawrence, Kansas, 200 bushels Stowell’s Evergreen Seed Corn, at $25.00 per hundred. “Delivered: F. o. b. Lawrence, Kansas. “Shipment: As ordered out; await instructions. “Terms: Cash. $ $ $ * “Examination: Buyers shall have no right to claim or to be entitled to arbitration for any cause, unless claim is made for, or arbitration demanded within three full business days after arrival, and if goods are subject to buyer’s privilege of examination, contract shall then be considered fully complied with on seller’s part. ❖ i'fi * # “Disputes: All disputes under this contract shall be arbitrated in the usual manner, and the decision of the arbitrators shall be final, cost of arbitration to be paid by the loser. * * * “Seller’s copy (duplicate sent to buyer). “W. E. Robinson & Co., Brokers.” The appellee answered the appellants’ telegram January 25th, both by telegram and letter of the same date. In the telegram, the appellee stated: “Booked your order for two hundred bushels Stow-„ell’s at twenty-five cents per lb. f. o. b. Lawrence, bags extra.

Net cash.” ⁴⁹¹ And in its letter, the appellee said: “After exchange of messages we have booked your order for two hundred bushels of Stowell’s Evergreen Sweet Corn at 25c. per lb. f. o. b. Lawrence, bags extra. Terms, net cash. ¥e prefer to ship the seed to you in one lot, but if we have to fill your orders, of course, we will do so, but we want to ship in our own name and make sight draft with bill of lading. For all Canadian shipments we have to have a license from the government in Washington, and we would have to know what price to charge these Canadian parties, otherwise cannot ship.” The appellee’s letter of January 25th does not appear from the record to have been answered, but on the 26th day of January, the day following the date of said letter and evidently before the receipt of it by the appellants, the appellants again wrote the appellee saying: “We have your wire reading as follows: ‘Booked your order for two hundred bushels Stowell’s at 25c. per lb., f. o. b.

Lawrence, bags extra. Eet cash.’ Wo have already sent you contract. “Please send us sample of this corn, and also advise what the germination test is.” This letter also was not answered. Shortly after the close of the negotiations, resulting in the sale of the thirty thousand pounds of corn by the appellee to the appellants, the latter from time to time, so early as the 16th day of January, 1918, sent to the former orders to ship to purchasers of the appellants, located in Canada and throughout this country, the quantities of com named in said orders. The com was shipped as ordered, and in some instances it was received and paid for, but in others it was rejected, because, as alleged, defective in its germinating powers.

As a result thereof the corn was thrown upon the hands of the appellants, and when tested at their instance it was found to ⁴⁹² germinate not more than from 40 to- 55 per cent., which not only showed a germinating power far less than that named in the first contract of sale, hut it also showed, as contended for by the appellants, that the corn was unfit for the purposes for which it had been bought by them. It was then that the appellants asked to be permitted to return the corn to the appellee, that it might put it in a condition by which its powers of germination would be strengthened to meet the test mentioned in the first contract of sale, and to render it fit for seed purposes, but the appellee refused to comply with their request, and no more of the corn was thereafter ordered out by the appellants. The corn remaining in the hands of the appellee, that had not been ordered out by the appellants, was sold or disposed of by the appellee, at a loss to- it, as it alleges. It was to recover- that loss that this suit was instituted.

To the eighth or last count, a demurrer was filed, but overruled. This count was based upon the second contract made, the one for the sale of two hundred bushels of corn, which contained a provision submitting all disputes arising under it to arbitration when demanded by the buyer within three full business days after the arrival of goods, and that a decision thereunder should be final. This provision of the contract, with others, was set out in said count of the declaration, and with it an allegation that no claim was made or arbitration demanded by the defendants within three full business days after the arrival of the corn. It is contended by the appellants that this count of the declaration is bad because of the insertion in it of said provision and allegation in respect thereto, claiming that under the law such provision of the contract, which sought to- oust the- court of its jurisdiction, was invalid and without force and meaning.

Should we concede the correctness of this contention, this count of the declaration, otherwise good, would not be bad because of the insertion in it of said provision of the contract, and the- allegation in reference thereto. The only object the plaintiff could have ⁴⁹³ had, in inserting the- same in the declaration, was to show that, notwithstanding the existence of such provision in the contract, it was not availed of within the time mentioned therein, and consequently the plaintiff was not prevented thereby from pursuing his remedy in a court of law. If the defendants are correct in their contention that it was invalid and thus ineffective for the