*2 number, formation 1-800-HI-EMERY. Before FAY JOHNSON, Circuit Fraga testified affidavit that Judges, *, and ALLGOOD Senior District representative service told him that Judge. carrier would Computel’s deliver FAY, Judge: Circuit Consignee and obtain a cashier’s payment. According Fraga, Computel, Inc. and Comtrad Internation- Emery’s telephone representative instruct- Corp. al (“Computel”), the Plaintiffs-Appel- ed him to write “C.O.D. cashier’s check” in lees/shippers, granted were summary final “Special box pre- Instructions” judgment on a breach of contract claim printed Emery Air Waybill, which he did. against Defendant-Appellant/carrier Em- ery Freight Air Corp. (“Emery”) in the Emery’s driver subsequently picked up $38,625.21. amount of The district Computel’s shipment for de- held that even when light considered in the livery. Cashier “C.O.D. Check” was writ- most carrier, favorable to the Plaintiffs’ ten in “Special Instructions” box of the * Honorable Allgood, bama, Clarence W. Senior U.S. sitting by designation. Dis- Judge trict for the District Northern of Ala- DISCUSSION $34,669.74 was sum of waybill, “De- Shipper” in the “Check written granting an order appeal from In an Emery delivered boxes. clared Value” review is *3 summary judgment, a Consignee, and collected shipment to legal stan apply the same plenary, and we Computel, bear- to payable check corporate the district controlled those that dards as name and address. Consignee’s
ing the summary determining whether in court the check Emery then delivered Al v. appropriate. is judgment Hoffman stamped and received, accepted, tel, who (11th 1379, 1382-83 F.2d Corp., 912 lied unconditionally in check Fire & Cir.1990); Farm v. State Thrasher president, Clau- Computers account. bank Cir.1984). (11th Co., F.2d Cas. that the check Osorio, not discover did dio the record examine We therefore check until not a cashier’s opposing party to the light most favorable Computel was returned check all reasonable motion, receiv- and resolve After Closed.” stamped “Account check, Computel the non- in favor of about facts the dishonored doubts Em- against Lobby, Liberty action v. brought a multi-count Anderson movant. 2513-14, the carrier maintaining essentially ery, 242, 255, 106 S.Ct. 477 U.S. com- deliver 1382-83; a contract to fulfill failed to (1986); Hoffman, 91 L.Ed.2d obtain, party and a third products to puter Lauderdale, Bannum, Ft. City v. of check. return, cashier’s a valid (11th Cir.1990); Thrash 901 F.2d pleadings, “the If er, F.2d at 639. complaint, Em- answering Plaintiffs’ In defenses, interrogatories, and answers to depositions, affirmative ery raised several guarantor file, the affida a) together was not on cluding: Defendant admissions b) parol evidence rule collection; genuine vits, there no any, show that print- change to the any oral written fact,” summary judgment barred material issue of liability c) no contract; Defendant had ed moving party is entitled and the proper a check or more than anything to collect Fed.R. matter of law. judgment as a to a (an obligation which Defen- money order Catrett, Corp. 56(c); see Celotex Civ.P. encompass collection contends did dant 317, 323-24, 2553- 106 S.Ct. 477 U.S. accepted checks); d) Plaintiff of cashier’s (1986). 91 L.Ed.2d by tendered check deposited the and motion, the dis- ruling on Plaintiffs’ e) print- protest; and consignee without present- of law issues found two trict court parties could be ed contract ex- 1) there Whether by pleadings: ed filed, response Emery also altered. Emery and Com- a contract between isted summary judgment, for motion Plaintiffs’ Emery to deliver putel for Manag- Operation’s Emery’s affidavit 2) basis; If cashier’s a C.O.D. check that as McGinley, stated er, Chuck existed, whether ship- Emery, “CTS a contract indeed practice business Emery regard the con- for provision conduct with do not include ments check.” Computers or certified subse- up by pick cashier’s tract was waybill air McGinley corporate depositing also stated “[t]he quent conduct CTS; ship Emery to provision this con- has parties The check. included for however, provision no issues; each we consider solidation delivery because C.O.D., or below. that service.” offer Emery does not motion Plaintiffs’ review of Upon Claim. Contract I. Breach its breach judgment on summary final observed, dis- district court As the affidavits, claim, well as the as contract be- aof contract to the existence pute as opposi- filed pleadings, and memoranda turns Emery and tween granted Defendant, the trial tion specifying Computel’s instruction whether judg- a final and entered motion Plaintiffs’ con- payment was cashier's check a C.O.D. ap- This $38,625.61 Computel. ment of conditions the terms sistent peal followed. delivery, expressed in Emery’s service OR MONEY ORDER. OUR CHARGE guide pre-printed air waybill. Emery FOR THE C.T.S. SERVICE OR ANY contends that air Emery OTHER CHARGE PAYABLE TO US Service prohibit contract any modification MUST NOT BE INCLUDED IN THE preprinted their any terms CONSIGNEE’S CHECK OR MONEY employee customer, or and that the instruc- ORDER PAYABLE TO THE SHIPPER. requiring tion Emery to obtain a cashier’s It is true that according to the terms and inconsistent, check was an unlawful altera- conditions on the reverse side of the way- tion of the carriage disagree. contract. We bill, employee agent parties may VIII, modify
Paragraph the subsection terms 4 of and conditions of the the service Emery guide provides service contract. But agree we for with the Shipper (C.T.S.) Check to district court that service: “neither the Terms and Conditions in the service guide THE nor the FULL air AMOUNT OF THE C.T.S. waybill any indicate in way MUST BE PAID BY THE CONSIGN- check is excluded from the definition EE’S CHECK OR MONEY ORDER ‘Check Money pertains Order’ as MADE to PAYABLE THE TO SHIPPER. [Emery’s] Check to Shipper (Rl- Service.” EMERY’S SOLE RESPONSIBILITY 25).1 SHALL BE TO ACCEPT THE CON- SIGNEE’S Indeed, CHECK OR MONEY OR- Emery’s own employee repre- DER AND EXERCISE CARE DUE sented to that Emery would de- AND DILIGENCE IN MAILING IT goods TO liver on a C.O.D cashier’s check ba- THE SHIPPER. THE CHECK OR sis.2 Even when viewed in light the most MONEY ORDER WILL BE MAILED carrier, favorable to the none the affida- TO THE (10) SHIPPER WITHIN TEN vits submitted Emery disputes that its BUSINESS DAYS AFTER telephone RECEIPT BY employee made a represen- US. WE SHALL tation, HAVE NO RESPON- or that representation any is in SIBILITY NOR LIABILITY WITH RE- way inconsistent plain with the language of SPECT TO PAYMENT OF THE CHECK the guide.3 service disputing While 1. not any "cashier’s check” is printed of Defendant’s instructions that "check,” species Emery argues "it that must rely customers should representa- not on the be inferred that a cashier’s check is not to be tions of its answering inquiries of presumed within the ‘consignee’s definition of to that callers number. order,’ money check or light when viewed (Rl-25). liability limitation of and Emery’s responsi- bility in Reply C.T.S.service." Appellant employee, 3.Emery’s Rodriguez, Jesus Brief driver argument specious. 4-5. The The state- picked up shipment, deny does ments "EMERY’S SOLE RESPONSIBILITY goods accepted he shipment for with the air SHALL BE TO ACCEPT THE CONSIGNEE’S waybill bearing special instruction “C.O.D. CHECK MONEY OR ORDER AND EXERCISE cashier check" marked appropriate in the box. DUE AND CARE DILIGENCE IN MAILING IT Although his affidavit states that he is familiar TO THE SHIPPER.... WE HAVE SHALL NO terms and conditions contract RESPONSIBILITY NOR LIABILITY WITH RE- SPECT TO PAYMENT OF THE shipment, for and that he "would not authorize OR CHECK payment collection of a cashier’s check for MONEY ORDER” Emery relieve from shipment," of a deny does that he did so being simply held delivering liable for a con- on the question. occasion in Jesus Affidavit of signee's subsequently check that They bounces. Rodriguez, (Rl-20). noted, As the district court Emery do obligation not relieve of its to collect Rodriguez picked "uncontested fact is that proper specified form of in the up package accepted delivery contract. expressed under waybill. the terms air The air spe- indicated that carrier was As the district court observed: cially instructed to deliver the C.O.D. representation Such any way does not in con- (Rl-25). cashier's check.” expand tradict or what contained Emery guide paragraph assertion, service Contrary Emery’s VIII or the to the affidavit of Terms and operations Conditions Contract noted manager, McGinley, Chuck raises waybill. Indeed, in the air Emery Service no issue of fact that would render district number 1-800-Hi-Emery presumably summary set judgment on this im- up give Emery customers proper. McGinley information shipments states that “CTS about its services. There is no indication in provision do not Emery pick include a up consignee. review of the record had from
After careful collected Emery, light appellate most favorable we opinion, brief summary judgment this issue agree grounds, and remanded on three reversed district court err proper. The did not was “ratification third of which addressed finding there was contract be corporation Par- Time of United World of a parties tween the acceptance cel’s certified checks”: goods computer on a cashier’s shipment of unconditionally Time World basis, breached this check deposited the checks no notice to up failing pick a cashier’s contract United Parcel that was consignee when it delivered the qualified by attempt mitigate dam- shipment. ages rights to or otherwise reserve hold nonconforming liable if United Parcel II. Ratification. proved to be World checks worthless. question is whether remaining Com time knew the terms of its C.O.D. ratified Em puters subsequent behavior to know presumed structions and Computel, principal, ery’s breach: Did *5 the tariff nevertheless the terms of but accepting unconditionally depositing and unconditionally. checks, deposited the check, Consignee’s ratify corporate its unequivocal an Such actions establish agent Emery’s unauthorized binding Par- and ratification of United delivery payment a form of other and of acceptance of the checks. cel’s carriage that con specified than omitted).5 (citations 1224 556 at So.2d disagree point, we with the tract? On this Time’s, summary judgment that no district court’s Applying logic to the World ratification as a matter of Florida occurred here, Computel certainly knew the facts law.'4 check,” delivery, terms of “C.O.D cashier “Special specified that Instruc- v. In Time United Parcel Service World It never- Emery tions” box of airbill. America, (Fla. 1223 4th Corp. 556 So.2d of corporate deposited Consignee’s 1990), theless shipper World Time uncon- DCA unconditionally its account. “In deposited check into ditionally accepted and noncon- shipping as this where a cus- forming certified checks carrier UPS actions such McGinley, finding In this does a (R1-16). Chuck the bank. cashier's check." of Affidavit air in ratification Court relies "[t]he He also states result CTS; Emery ship provision Jewelry how has a decision in Co. v. United Parcel Streiff C.O.D., ever, Service, (S.D.Fla.1987). provision F.Supp. no is included for 670 Un 341 circumstances, delivery very because does not cashier’s check similar this Court der If, however, plain that service.” Id. offer language that before a can be in ruled ratification (and guide suggests ferred, of Em knowingly the service and will must refute), delivery ery of offers evidence to no act in a manner consistent with aban is subsumed under the lan rights. a cashier's check In of his contractual order donment money provi guage here, order" the CTS "check or for there to be ratification defendant sion, separate provisions provid of absence have to show that Plaintiff ing check irrelevant for cashier's full and the check with intention determining payment such a form whether approval of that this would constitute an De specified terms of the con consistent with fendant's act and that there has been tract. showing. Consequently, the court finds that there was no ratification. issue, ruling ratification 4. In on the the district (Rl-25). court found as follows: admitting that 5. the Florida hold- While Osorio[, deposition of Claudio In divergent” ing "potentially Time is in World Computel,] paragraphs president 8 interpretation applicable 9, from its Plaintiff states circumstances of ratification, concerning precedent as- of the check. Defendant does that the discussion of ratification World serts dispute clerk of com- these facts. A Plaintiff's duties, Appellees This dicta. at 17. put Time is pany, performing ministerial Brief of simply court’s rever- placed not accurate. The Florida company stamp check it for on the predicated explicitly sal trial court was deposit. check was fact that factors," the which was "three third of rat- to Osorio's attention as not received came Time, See World 556 So.2d result of the comorate check beine returned ification.
683
v.
Jewelers,
Parcel Service
allegedly
tomer sues his carrier for
collect
Buchwald
476
payment,
(Fla.
1985);
unauthorized form
772
3d
Pedro Real
So.2d
DCA
Silva,
Inc. v.
majority
jurisdictions agree
vast
ty,
(Fla.
Motor
Co. v. United Parcel
requirements
check did not conform to the
*6
(N.Y.City
contract,”
N.Y.S.2d
jurisdictions determined that the re party that the tablished was quirement knowledge ‘full of of the facts’ requirement imposed payment by the of was satisfied where the evidence showed States, cashier’s check. See Mountain was aware that shipping the customer that Further, Colo.App. at P.2d at carrier had collected a variant the form clearly the in the record is marked payment.” Imports, Karat Gold of “shipper’s copy.” Knowledge of (emphasis supplied). WL 98764 at 6 requirement cashier check” thus “C.O.D. case, ques apparently Computel’s In this the ratification was available to of- upon language highlighted shipper’s centers ficers and in the files. tion addition, id. of of See primary elements cashier’s checks are above. One marked, knowledge generally, recipient a doctrine of ratification is Thus, Computel charged knowledge relies on a a check is material facts. when id. articulating well- a or check. line of Florida cases certified “[bjefore may knowing that infer rule one here is whether settled being principal requirement ratified the unauthorized of affirmance, time of ex- agent, act of his the evidence must demon formed Jewelers, Buchwald principal fully informed pressed strate that the limits Time, World approved analysis applicability and that he of act.” of key exchange They just A: That’s received the 6. The was as follows: correct. So, stamped signature check and it. There is no prior Q: your testimony is that check, bank, they deposit you this in on the as can see. And of bank [SIC] nobody it checked to determine whether it. you Osorio, (SRI). to the conformed method of Deposition Claudio of Consignee]? requested had from [the speaking, not devolve Generally does suggest finding of otherwise would which inquiries that Bu- upon principal make do not think We ratification. right presume He has the facts. problem.7 presents Jewelers
chwald
instructions,
agent has followed
that his
(Second)
91(1)
the Restatement
of
Section
authority.
his
and has
exceeded
knowledge of a
dealing with the
Agency
of
sought
to be held liable
he is
Whenever
or rat-
time of affirmance
at the
ratification, either ex-
of
ground
instructive,
expresses the
ification is
shown that
implied, it must be
press or
by the Buchwald Jew-
principle articulated
knowledge of all
upon full
he
“If,
of
the time
cases:
elers
line of
willfully
he was
facts,
or
material
igno-
affirmance,
principal is
purported
purposely
ignorant,
refrained
origi-
facts involved
rant material
or that he intend-
seeking information,
his
transaction,
unaware of
nal
act at all
adopt the unauthorized
ed to
avoid the
thereafter
ef-
ignorance,
he can
events,
circumstances.
under whatever
Restatement
affirmance.”
fect
v. Pet
added);
see also Gordon
(emphasis
91(1) (1957). Specifi-
(Second) Agency §
214, 218,
96 P.2d
tingill, Colo.
princi-
speaks to when a
e
cally, comment
rat
(1939) (full knowledge
purposes
knowledge:
pal
the risk
lack
assumes
included that
which
ification
is shown to
purported principal
If the
disclose,” and
diligence would
“reasonable
facts which would
knowledge of
have
knowledge cannot be es
lack of
principal’s
ordinary prudence to
person
lead
“ignorant
showing
he was
tablished
further,
fails to
and he
make
investigate
know, and
in his
of facts it was
interest
his
with-
investigation,
affirmance
known”).
awake,
which,
he is
is evidence
qualification
out
Osorio,
ratify upon
president
willing to
Claudio
Likewise, if, learning that
tel,
no one at
which he has.
testified that
effect
him,
authority acted for
incoming
analyzes
quality
one who had
company
qualification and
conformity
payments’
he affirms without
payments or the
he has rea-
investigation, when
they
without
are
before
prior instructions
*7
not know all
that he does
son to believe
Osorio’s
by administrative clerks.
aware-
that he is
facts, may
inferred
it
be
the
accepting
a structure for
ness of such
risks of facts
the
willing to assume
light
in the
coming payments, considered
knowledge.
has no
which he
Emery,
could be found
most favorable
Computel
imply that
intention-
reasonably
Line v. First
Indeed,
Id.
Lake
in
Oxford
incoming pay-
checking
from
ally refrains
Pensacola,
Fla.
40
359-
Nat. Bank of
payment speci-
against
the form
(1898),
Supreme ments
the
483
24 So.
appears to
Computel
fied to
carriers.
its
observed:
Court
Florida
knowing
ratification of UPS’s
that there was
conclusion of no
reached its
7. The district court
certainly
relying
in
the
court was
by
its decision
conduct. While
district
on
Streiff
Service,
F.Supp.
adopting
prior
670
Jewelry
reason-
United Parcel
as it did in
Co. v.
free to act
vacated,
(S.D.
F.Supp.
(S.D.Fla.1987),
7
Jewelry,
the
case was vacated
latter
Streiff
1988),
factually
case.
Jewel
settlement,
similar
Fla.
a
need not con-
and we
Streiff
therefore
law,
consignor’s
ry
under Florida
held that
applica-
whether it
a correct
sider in detail
deposit
cashier's check
acceptance
of a
de
and
expressed
law
in Buchwald
tion of
Florida
UPS,
consignor
occurring
after
livered
Jewelers.
shipment on a
expressly
had
"cash-only"
contracted
Nevertheless,
significant that the
it is
basis,
not constitute
rat
did
admittedly
sparse opinion in
rather
noncon
of UPS’s
ification
opinion
vacated
does cite the
World Time
(which
proved to
forming
counterfeit).
later
be
payment
yet
contrary authority,
Jewelry
as
uses
consign-
Streiff
that the
court noted
signal
citing Buchwald Jewelers.
compare
testimony
that
deposition
established
he
or’s
elaborate,
did not
World Time court
While the
type
of C.O.D
was not
familiar
obviously
that it considered Buchwald
clear
case,
specifically,
and
at issue
distinguishable
case. We think
Jewelers a
by depositing the counterfeit
was not
that
aware
clearly distinguishable
case are
facts of this
rights
any contractual
check he
lose
Thus,
note
Jewelers well. See
from Buchwald
as
F.Supp.
against
343.
UPS. 670
infra
Jewelers, and concluded
cited
Buchwald
deposit checks unconditionally
“whatever
Computel’s ministerial employees were on
the circumstances.” We believe that
notice that cashier’s checks differ from cor-
above-mentioned
authority
suggests
porate checks;
2) Computel
if
kept Emery’s
Computel cannot specify one
pay-
form of
file,
possessed
i.e.
the means to
ment,
up
set
procedure
whereby it
easily
verify whether
payments
were
willfully ignorant of whether
the incom-
conforming but, as
testimony
Osorio’s
sug-
ing payment conforms with
company’s
gests, chose
so;
3)
not to do
Computel
and
original payment
(copies
instructions
deposited
nonetheless
payments
uncon-
which are presumably readily available in
ditionally,
it seems that “full knowledge”
files),
unconditionally accept
and
be imputed
could
rat-
varying
payment,
form of
argue
then
purposes.
ification
Comark,
See
also
lack of knowledge when an unfortunate
F.Supp.
(“Comark
at 646
had knowl-
dishonoring or “bouncing”
payment
oc-
edge
all material
facts.
It understood
curs.8
nature
and purpose of all the checks
deposited
when it
them.
It
is clearly
Further, Florida case law acknowledges
charged with knowledge of what kind of
general principle
of agency law that
it had requested
from UPS in
of,
knowledge
or notice to an agent or
instance.”).
each
employee
imputed
to the
when
it is received by the employee within the
least,
At the very
we think that when the
scope
employment,
of her
when
is in
facts and testimony are considered in the
reference
to matters over which the em-
light most favorable to Emery, especially in
ployee’s authority extends. Anderson v.
light of World Time and the foregoing
Walthal,
(Fla.
part, VACATED but inquiries as to the facts. make principal to of ratification.10 issue trial on the agent right presume that his He has a ” dissenting: JOHNSON, Judge, Circuit Id. This instructions.... has followed clearly places the burden language holding panel’s agree with I remained “will showing principal that the contract with Emery breached upon defendant fully ignorant” however, agree, I cannot tel. de affirmative asserts Computel may have holding that panel’s v. Florida State Bd. fense. also Bach deposit- simply Emery’s action (Fla.Dist.Ct. So.2d Dentistry, 378 non-conforming I therefore check. ing the duty (stating that App.1979) “[t]here dissent. in principal to make imposed upon the observes, Florida under majority As the agent his has carried quiries as to whether must show law, asserting ratification one If we allow responsibilities”). his out agent’s con- accepted the that the Computel’s procedure pre office fact that all material knowledge of full “upon duct followed instruc has sumes that willfully was facts, principal] or that [the showing as the basis for tions to stand seek- from purposely refrained ignorant, or “willfully ignorant,” Computel was information, he intended to or that shift this burden. inappropriately then we events, at all act adopt the unauthorized law for such I find no precedent circumstances.” under whatever Oxford shifting burden an affirmative Nat’l Bank Pensaco- v. First Lake Line defense, viewing the facts in a even when (1898). la, 24 So. Fla. on a favorable to the nonmovant light most that, position based on majority takes summary judgment motion. Osario, Computel of Claudio deposition acceptance of may have ratified the district I therefore affirm by remaining non-conforming payment judgment in fa- grant summary deposition Osario’s “willfully ignorant.” Computel. vor of office that the aware shows that analyze Computel did not clerks at attempt to incoming payments or
quality of pri- compliance with payments’
confirm depositing them. before instructions fact, majority infers that From this America, UNITED STATES intentionally refrained may have Plaintiff-Appellee, its carriers investigating whether regarding the with instructions
complied accept. was to the carrier form $260,242.00 UNITED STATES requires a view, an inference my Defendant, CURRENCY, possible to Though it is infer leap. long Claimant-Appellant. Frawley, Richard system that the statement from Osario’s *9 keeping company has effect No. 90-8434 whether the carrier has the dark as Non-Argument Calendar. do not promised, I believe performed as Appeals, States Court Osario “willful- also infer that can that we Eleventh Circuit. intentionally this office established ly” or Dec. company order to insulate procedure in ratification. defense from an affirmative leap especially troublesome long
This directly against the lan- goes
because damages district court. that, liability awarded in the event 10. We note established, party the amount neither contests