100 Kan. 261 | Kan. | 1917
The opinion of the court was delivered by
’A. J. Brunswig, doing business as the A. J. Brunswig Grain Company, of St. Joseph, sued the Farmers Grain, Fuel & Live Stock Company, of Alden, for failure to deliver two shipments of wheat according to the terms of two contracts made with the Smith-Mann Grain Company, of Kansas City, and by it assigned to the plaintiff. An appeal is taken from a judgment rendered upon a verdict for the defendant.
The evidence was mainly in the form of documents, and there is little dr no room for dispute as to the material facts.. The defendant, as seller, and the Smith-Mann Grain Company, of Kansas City, as buyer, contracted by the execution of three separate instruments, two being dated July 11 and the third July 14, 1914, for the delivery of four cars of wheat at Galveston. The first writing called for one car at 82%, to be delivered in July; the second, for two cars at 82, in August; and the third, for one car at 80%, in twenty days (from July 14). On July 30 the defendant notified the Smith-Mann company that it was ready to load out the first car, stating that the Santa Fe refused to accept Galveston shipments, and asking what to do about it. The Smith-Mann company on the next day wired: “Bill wheat to Fort Worth, Texas.” The defendant at-once shipped a carload to Fort Worth, under the first contract, and made a draft upon the Smith-Mann company for the price, with the bill of lading attached. The draft was not paid, the buyer apparently having become financially embarrassed. On August 1 the Smith-Mann company assigned the three contracts to the plaintiff, and notified the defendant to that effect. At the request of the Smith-Mánn company the defendant had the draft presented to the plaintiff, who refused to pay it, because of the wheat having been shipped tó Fort Worth instead of to Galveston. Before the defendant knew of the final refusal of the plaintiff to pay for the car of wheat it had shipped to Fort Worth it wrote to him (on August 5) stat
The court submitted to the jury the question whether the telegram from the Smith-Mann company to the defendant reading “Bill wheat to Fort Worth, Texas,” referred to all the wheat covered by the three contracts, or only to that part of it covered by the first contract, which was then ready for shipment. Instructions were given to the effect that if the telegram referred to all the wheat the defendant was justified by the plaintiff’s conduct in refusing to make further shipments; but that if it referred only to the wheat covered by the first contract the defendant was liable to the plaintiff for such refusal. The jury obviously decided that the telegram referred to all the wheat.
“Your favor of the 28th at hand. We regret that you will require us to load capacity cars on all grain sold. We will load them that way. We are ready to load out the first car for July shipment. Please give us billing to-morrow. The Santa Fe refuses to accept Galveston shipments. Please state what you want us to _do with the wheat. What are you going to do about it?”
The telegram reading “Bill wheat to Fort Worth, Texas,” was sent the next day. The sentence “Please give us billing to
In a letter already referred to, written to the plaintiff on August 5, the defendant said: “Please give us billing on the 80 and % cent car as soon as possible and then we will hold the two cars for Aug. shipment pntil later in the month.” But the request for instructions as to the billing did not imply that the plaintiff could require delivery at Galveston, or any point other than Fort Worth.
The judgment is affirmed.