Cumberland Hydraulic Cement & Manufacturing Co. v. Wheatley

9 App. D.C. 334 | D.C. | 1896

Mr. Justice Shepard

delivered the opinion of the Court:

After careful consideration of the grounds urged in support of the judgment, we are of the opinion that it was error to direct a verdict for the defendant. Plaintiff’s evidence was sufficient to authorize a verdict in its favor, and should have been submitted to the jury.

So far as the identity of the cement is concerned, that was fully covered by the agreement of the parties, and it was unnecessary for plaintiff to introduce any evidence on that point.

The contracting parties had the power to modify or to substitute, in whole or in part, the contract for the sale and delivery of the cement, and this was not required to be in writing even, much less under seal. Teal v. Bilby, 123 U. S. 572, 578. The parol agreement testified to by Ackerman was sufficient to revest the property in the plaintiff, and the confirmatory letters of January 29 and later were not necesssary for the purpose. By the terms of the original contract, defendant had the right to reject and refuse to pay for such of the cement shipped to him as might fail to pass the District inspection. He stored it as it came in and notified plaintiff of the condemnations, as made, at the same time forwarding samples to the New York office. Considerably more than thirty days elapsed, and he neither formally tendered it back nor paid for it. He, in fact, owed the plaintiff nearly if not quite double the price of the cement remaining in the storage warehouse at the time that he offered to return it. On account of this condition of affairs, Ackerman came to Washington to arrange a settlement of the matter. Defendant, as he had a right to do, tendered back the cement, which he represented as amounting to 1,350 barrels, and Ackerman, acting for his company, received it. The matter was closed. Nothing more remained to be done. Beardsley v. Beardsley, 138 U. S. 262, 266. At or about the same time it was agreed that the defendant might sell the cement for the account of the plaintiff, and a net selling price was fixed. Whether defendant expected to make a commission by selling at a higher figure, if he could, does not appear. In the letter of January 29, he acknowledged having but 1,100 barrels for sale, and plaintiff at once wrote requiring a statement as to the remaining 250 barrels. These were added to the lot, as we have seen, by the defendant’s letters of January 30 and February 1.

Plaintiff’s letter instructed him in plain terms not to sell to a party named except for cash on delivery, and to give notice to it before completing a sale to any other purchaser than the Government.

It was not necessary to complete the changed relations of the parties, that the plaintiff should then and there have credited defendant’s old account with the price that had been charged to him and have opened a new account with him as agent or consignee for sale. As defendant was expected to sell the cement, at the same price, for the account of the plaintiff, and remit the proceeds, there was no necessary reason why the change in the accounts should have been made. That would have been an idle formality, and he was not called on to perform it. It was amply sufficient for defendant’s protection that he should be credited, as he might from time to time report sales and remit the proceeds. He was informed in the letter directing him to deliver the cement to McGill that his account would be credited with the amount delivered. If he had peaceably yielded up the 1,038 barrels that have been replevied, he would still be chargeable with the price of the 312 barrels that have not been found or accounted for. Under the evidence shown in the record, this objection to the completion of the second arrangement seems to be an afterthought. Nor was the mere fact that the general account between plaintiff and defendants, dated March 30,1895 (about two weeks after the institution of the suit), contained the original charge for all the cement, includ- < ing that which had been tendered back and accepted, sufficient of itself to warrant a jury in finding that no return had been made, much less to justify an instruction to find for the defendant. If this action fails, defendant will be liable for the whole of that account as it stands; if it succeeds, he will be entitled to a credit for the purchase price of the 1,038 barrels that have been replevied.

The points that have been argued touching the claims of the warehouseman for storage need not be considered. They cut no figure in the case as between the plaintiff and defendant, and he is not a party to the suit.

It follows that the judgment must be reversed, with costs to the appellant, and the cause remanded for a new trial. It is so ordered.

Reversed and remanded.