120 F. 463 | 5th Cir. | 1903
Orthwein’s Sons, citizens of Missouri, dealers in and exporters of grain — their immediate place of business being at Ft. Worth, Tex. — were the plaintiffs below; and the Cameron Mill Company, receivers, shippers and dealers in grain in the same place, called in the briefs the “Mill Company,” were the defendants below. It will be sufficient for our present purposes to state the cause of action to be as follows: Orthwein’s Sons allege that the mill company on August 19, 1900, sold, under two different contracts of sale (5,000 under each contract), 10,000 bushels of wheat of a certain quality, under conditions and mutual understandings which show an executory contract — a contract which did not become executed or vest title in the thing sold in Orthwein’s Sons unless
The record shows 10 assignments of error on behalf of the plaintiffs in error. The first assignment of error charged against the trial court is because of its refusal to admit a part of McTellan’s evidence relating to his understandings of the meaning of certain words and phrases relating to place of delivery appearing in the letters now in evidence, which letters plaintiffs in error contend are ambiguous and incomplete in their meaning, and do not show a mutual understanding that sellers were to deliver wheat into the elevator at Galveston. The several other assignments, relating, as they do, to the refusal of special instructions, challenge, substantially, the Circuit Court’s affirmance of the contention of the defendants in error to the effect that, under the terms of the contract of sale, the title remained in the mill company, and the said company bound itself in the contract of sale to deliver the wheat to Orthwein’s Sons “in the elevator at Galveston,” and may be taken up later, and disposed of in considering the charge of the Circuit Court. The Circuit Court’s charge is as follows:
“* * * It appearing to the court that the law is for plaintiff, the court so announced, and instructed the jury to find for plaintiffs the amount of the difference between the sums paid by plaintiffs to defendant for the wheat in controversy, and the value of said wheat at the time same was delivered to plaintiffs in the elevators at Galveston, together with the expendituz-es made by plaintiffs for handling and preserving the wheat before it went into said elevators. * * *”
Considering the first assignment of error, it appears that plaintiffs in error, refusing to be held to an acquiescence in the interpretation which the defendants in error sought to put upon the contract of sale, offered to show by McLellan how he himself (he having negotiated the sale over the phone with Orthwein’s Sons’ agent, Mountcastle) understood, on his reading of buyers’ letters, the sellers’ obligation as to the matter of delivery. He was asked to read Orthwein’s Sons’ letter, and say what he understood — that is, what is the meaning of
“Fort Worth, Texas, Aug. 29, 1900.
“Mess. Cameron Mill & Elev. Co., Fort Worth, Texas — Dear Sir: We confirm purchase from you to-day of-cars, 5,000 bushels, No. 2 red wheat, new crop, at 70% delivered Galveston, Tex.,- f. o. b. shipment within 10 days. Delivery at-by Galveston, Tex., weight and grades. Ship to Galveston, care Texas Star Mills Elevator, and don’t fail to note on B. L. ‘For Export’ Make draft on us B. L. attached, at Fort Worth, Texas, leaving fair margin. Exchange to be paid by shipper. All cars must be loaded to capacity.
“In reference to this purchase please use Contract No. 897.
“Yours truly, Chas. F. Orthwein’s Sons per Butts.
“No. 3 wheat, 59 lbs. lc off, and lc additional for each pound below 57.”
“Cameron Mill & Elevator Co. High Grade Flour and Meal.
“Fort Worth, Texas, Aug. 29th, 1900.
“C. F. Orthw-in’s Sons. City — Dear Sirs: We beg to confirm our sale to you over phone to-day of 5,000 bushels of No. 2 red wheat at 69% cents per bushel and 5,000 bushels at 70% cents per bushel, delivered Galveston.
“Yours truly, Cameron Mill & Elevator Co.,
“Per McLellan.”
This record shows a case which resolves itself, on writ of error, into the question as to whether any issuable matters of fact are disclosed therein which should have been submitted to the jury. Several issues of law are presented by counsel on either side, illustrating their contentions as to the first assignment of plaintiff in error. Under our view of the case, it seems necessary to consider two issues of law: First. The legal question as to whether or not the language and phrases of the letters relied upon by the buyers to show an aggregatio mentium of the parties on the place for the delivery of the wheat, when read between their four corners, are ambiguous and incomplete. Second. Should the letters, in considering McLellan’s rejected testimony, be treated as written instruments intended by their authors, respectively, not to reduce to writing all their understanding as to the essential elements of the verbal contract of sale made over the phone, but to add confirmation thereof, with supplementary instructions, in which both parties had already primarily concurred as to matters which may necessarily enter into in whom the title vested when the damaged wheat was found after the storm at Galveston.
It was competent for the parties to make a verbal contract of sale of either an executory or an executed character. The agents of the parties, as witnesses on either side, agree in saying a contract of sale was made and completed on parol negotiations and understandings had over the phone. Conceding that the sale was made verbally, an agreement as to the thing sold, the price, and consent, presumably, was understood by the parties, and this sale could have been enforced at the instance of either in the absence of these letters. In that case the matter of delivery would have been supplied by a presumption of law. Presumably, the two letters were written by the authors thereof, respectively, in their offices at Ft. Worth. Nothing in the evi
“I called Mountcastle over phone. After some talk, I accepted a price of 09%c., 70%c. at Galveston on basis No. 2 red. I was to pay the freight. I heard Mr. Mountcastle’s deposition read as to our conversation about delivery, and he is mistaken.”
Further testifying, McLellan said, after the full purchase price was paid, and the bills of lading were turned over to the buyers, the wheat which was in the elevator at Ft. Worth was then shipped to Galveston “as per instructions given to me.” It does not appear how these instructions were given to him. Presumably, he meant, in using the words quoted, that the sellers’ letters were or should be construed as giving him instructions as to delivery and shipment of the wheat, or it may be that he had received in some other way verbal instructions as to such material matters. Much of the evidence appearing-in the record seems to be historical, as to things which occurred after the cars, with the wheat, left Ft. Worth, yet some of the evidence went, in its effect, whatever may have beén apparently the
We make cursory reference to such contradictory evidence, not with a view of stating rules of law with which to test the passing of title from the seller to the buyer on a given state of facts — such issues of law are not now considered by us — but only to suggest that so much of it as we have referred to was largely surplusage, unless it was the purpose of the trial court to submit to the jury the issue of fact as to in whom title to the wheat rested when it was damaged. It seems that the trial judge was of opinion that these letters were intended by the -parties to be, concretely, the repository of all their understandings as to the essential, elements of the contract. On such a view of the state of case, much of the parol evidence as to delivery was not admissible. It seems, too, to have been thought by him that there was no conflict apparent in the evidence, which seemingly was admitted to illustrate the subject-matter and material incidents of the contract of sale, and the intention 'of the parties on the matter of delivery; that the letters, being free from ambiguities and incompleteness, clearly enough, on reading the same between the four corners thereof, showed that the parties intended that title should remain with the sellers until they had delivered the wheat “into the elevators at Galveston.” Whether this view of the trial judge is well taken or not, we think, on the state of facts already disclosed at the time the case was withdrawn from the jury, that it should have been submitted to the jury for a verdict on such contradictory evidence as appears in the record.
. Whether the language used in a contract is ambiguous or incomplete is a question of law, for the court. We think these letters were ambiguous and incomplete, if not absolutely obscure in surplusage of words, as well as in the absence of words which seem necessary to intelligibly fill the blanks and places where no words appear. In cither of the confirmatory letters is found the words “delivered Galveston.” Taking these words as they are related to and appear in the context in either letter, it does not follow manifestly that both authors gave, or intended to give, the same meaning to the phrase. The buyers contend that these words, together with the context of their letters, mean that the sellers promise to deliver the wheat at Galveston into the elevators. The sellers contend that the words “delivered Galveston” relate to a net price of 70^2 cents per bushel
Regarding the first assignment, it appears, under the rule of parol evidence, that neither party to written instruments intended to embody all the understandings of the parties as to the essential elements of a contract may be heard as a witness to show, as against the other party, what he himself intended to be, or should be, the meaning of certain ambiguous words therein. Greenleaf, vol. 1, page 406, notes. It may be that to admit McRellan’s evidence over the objection urged in the trial court would be trenching too closely on the rule of evidence which we have just suggested. If the letters relied on by the sellers to show the place of delivery are, because of these ambiguities, not intelligible on that issue, the common-law rule would authorize the presumption that the parties intended to have delivery made at Ft. Worth. If there was a suspensive condition as to title resting in the matter of delivery, then either party may avoid the effect of the legal presumption just stated by admiñistering parol evidence to show, how and when such a suspensive condition was to be performed by the seller. The rule of evidence applicable to such a state of case, stated substantially, is, if the contention is that
For the foregoing reasons, the judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to award a new trial.