112 F. 389 | 5th Cir. | 1901
Lead Opinion
The defendants in error brought this action against the plaintiffs in error in the circuit court for the Middle district of Alabama, claiming and seeking to recover of the plaintiffs in error $5,000 damages for an alleged breach of contract to sell and deliver to the defendants in error 1,500 bales of cotton bought of them at Enterprise, Ala., at the price of 6⅝ cents, free on board, round, nothing below low middling, and subject to reweight. The fifth count, added as an amendment to the complaint, after stating the contract and the alleged breach, avers that after the defendants (the plaintiffs in error) had failed and refused to deliver the cotton, or any part thereof, to the plaintiffs (the defendants in error), they went into the market, and purchased 1,500 bales of cotton of a similar grade to the'cotton purchased from defendants, at a loss to them of, to wit, one-half a cent a pound; that is to say, that by reason of the advance in the price of cotton they were required to pay, to wit, 7⅜ cents per pound for the cotton. Plaintiffs aver that' they could not purchase the cotton at Enterprise, Ala., by reason of the fact that the cotton was not there, and could not be had, except this cotton which defendants had, and which they refused to deliver to plaintiffs, and sold to another person on November 25, 1899; and plaintiffs aver that they purchased the cotton, to wit, 1,500 bales, of a grade as nearly similar to the cotton which defendants refused to deliver as they could, and they aver that they purchased it as expeditiously and as cheaply as they could, and that they had to pay therefor, to wit, 7⅜ cents per pound; and they aver that in the purchase of the 1,500 bales of cotton they incurred expenses and rendered services reasonably •worth 50 cents per bale, amounting to the sum of, to wit, $750;
Besides other evidence, which we do not deem it necessary to recite, the bill of exception shows that on the 15th day of November, 1899, John Gatling was at Elba, Ala., acting as the agent of the plaintiffs in the purchase of cotton, and on that day received in the due course pf mail the following letter:
“J. 2). & W. E. Henderson, Merchants and Bankers.
“Enterprise, Alabama, November 15, 1899.
'“Mr. Jno. Gatling, Elba, Ala.—Dear Sir: As soon as you get through shipping your cotton over there, come over here, and stay with us. You have nothing over there to nurse, and there is about 1,500 or 1,000 bales, here. We want you to come over and look at ours. It is much better ginned than the cotton you have been handling there, and if you will come over we will 'give you the preference when we sell.
“Yours, &c., ' J. E. & W. E. Henderson.”
The witness Murphree, called by the defendants, testified on cross-examination :
“A telegram prior to November 20th, signed ‘Jno. Gatling, Agent for MeFadden Bros,,’ was received a1 Enterprise at a time, according to my recollection, when neither of the defendants was there, and was received by myself. On the same day. or probably the next, I had a conversation with Mr. Gatling over the telephone. The telegram was signed ‘Jno. Gatling, Agent for MeFadden Bros.’ The next day I had the conversation with him, and told him that Mr. Henderson was out, and would he in later in the day, and would confer with him. I was there in the store representing defendants at the time of this conversation with Gatling. My recollection is That I informed W. E. Henderson, and told him to go to the phone, and see if he could make a trade; but I don’t think lie could find him. I informed W. E. Henderson of having received a telegram and of having a conversation with Gatling. * * * 1 did not show that telegram signed ‘Jno. Gatling, Agent for MeFadden Bros.,’ to W. E. Henderson, nor did I tell him how it was signed, nor did I so tell Mr. J. E. Henderson.”
W. E. Henderson testified:
“Some time between the loth and 20th Mr. Gatling asked me to come to> the plione. I went to the phone. (The operator came for me, and said It was Mr. Gatling.) He didn’t toll me who he represented. He said he heard we had a large lot of cotton for sale. I said ‘Yes,’ and we would be compelled to sell that cotton within the next few days, and to come to Enterprise, so he would be on the ground, so I could deliver promptly; that the reason we were selling this cotton was that we were compelled in our business to have the money, and I would either have to sell a lot of cotton in Savannah or Enterprise, and preferred selling- the cotton in Enterprise, because I could take better care of it in Savannah. Enterprise is a small place, and we have not warehouses sufficient, and it is a hard matter to taka*392 good care-of'cotton.1 The -warehouses hold nothing like-1,500 hales of'cotton-I. wanted to .and- intended to sell the cotton at Enterprise. I explained to him it, was for immediate delivery, and that his communications or otters to me must he considered that way, and any acceptance by me of his otter would hé considered the same way. We must deliver the cotton at once, arid we must have the money. Mr. Gatling said it was all right. He was in Elba,,and would-come immediately; and that, if he. wired, I might consider his meaning to be ‘immediately.’ ”
Gatling, for the plaintiffs, testified:
“I had a conversation with a person representing J. E. and W. E. Henderson over the phone while at Elba some time prior to the sale of the cotton. I don’t know the date. It was prior to the 20th of November,—:prior to the time I sent that telegram dated on the 20th at 10:20. He asked me, as near as I can recollect, what I would give him- for the cotton. I made him an offer, and I don’t know what he said, but that he didn’t care .to sell then, and would let me know in a few days. He said something about my coming down and staying at Enterprise with them. I said it was impossible, asT ha'd a large lot of cotton at Elba that I could not leave. Nothing was said about the same being for immediate delivery,—about, if any offer was made by me, or sale made to me, that the cotton must be received and .paid for at once, or immediately.”
. Omitting signature, address, and dat.e, except the place frqjn • which sent and the hour, these are the telegrams which passed on November 20, 1899:
10:15 a. m., Elba: “Name lowest price f. o. b., round, nothing below low middling, to be reweighed. Answer quick.”
3:50 (?) p. m., Enterprise: “Make us best offer you can our lot.”
4:10 p. m., Elba: “Offer six seven-eighths f. o. b., round, nothing below low middling, subject to reweights. Answer immediately.”
4:30 p. m., Enterprise: “How long will you give us on your offer?”
4:35 p. m., Elba: “Will give you half hour on limit”
'4:45 p.- m., Enterprise: “Squeeze your limit one-sixteenth. Will try to trade with you. The lot is at least one-sixteenth better than you are figur■ing on.”
5 p. m., Elba: “Can’t increase offer. Answer as soon as possible. Am expecting limit to be cut.”
5:25 p. m., Elba: “Cannot offer more.”
5:30 p. m., Enterprise: “1,500 bales of cotton is yours. Come at once. We want the money out of it, and the insurance stopped.”
■ 5:40 p. m., Elba: “Order cotton out at once unless it rains. Will be down as soon as possible. Confirm sale by letter.”
November 21st:
9:35 a. m., Elba: “Soon as you get all cotton lined out ready for weighing ■ and classing, wire George Beale here. I go to- Brantley this evening.” ■
1 p. m., Enterprise, to George L. Beale: “We are ready to deliver cotton.” (Hour not given.) Elba: “Will come down as soon as our weigher gets there to weigh cotton. Reweighing, must not begin until he arrives.”
• Enterprise, • letter - to George L. Beale: “Dear Sir: We expect you tomorrow morning without fail, to commence receiving cotton. We are ready to deliver. We have good beams and government standard seal weights to test scales, and men to weigh it.”
November 22d:
Enterprise, letter to George L. Beale: “We were disappointed that you did 'not show up here on arrival of train this morning. If costs big money to carry 1,500 bales of cotton, and we want to deliver it, and get our money out of it. Will certainly expect you to-morrow morning to get to work on
■ it. ' Don’t fail to come.”
8:45 a. in., Elba: “Sorry to disappoint you. Impossible tó come. Haven’t finished shipping here yet. Communicate headquarters Montgomery. Perhaps they wifi send man.”
10:20 a. m., Enterprise, to George R. Beale: “You have no cotton with us.”
10:50 a. m., Elba: “Yours we expect to begin receiving cotton to-morrow sure.”
24 (no other date), Elba: “Since wiring you this morning, have wire from Montgomery that weigher and crew be down on to-night train.”
1:10 p. m., Elba: “Gatling bought 1,500 bales from you on the 20th. I have your letter acknowledging sale by saying cotton is ready to be delivered. Gatling promised to receive it in a few days. Time hasn’t expired. We shall hold you to the sale. Grew will be down to-night to begin.”
2:45 p. m., Elba: “What price will buy round lot 1,500 bales or less, nothing below middling, f. o. b.? Answer immediately.”
3:25 p. m., Enterprise: “If you wish to buy cotton, make us offer. If offer satisfactory, we will sell it to you.”
2:45 p. m., Montgomery: “We bought from you, through our agent, Jno. Gatling, on 20th, 1,500 bales cotton at six seven-eighths cents round lot, nothing below low middling, cotton to be reweighed. Plummer & Richardson have gone to Enterprise to. receive cotton for us. Deliver same to them, and we will pay for cotton according to contract at Enterprise, or when you direct, upon receipt of same.”
7:50 p. m., Montgomery: “We have been advised by our Mr. Plummer that you declined to deliver the 1,500 bales of cotton bought from you by our Mr. Gatling. We demand the cotton according to contract. Plummer & Richardson will remain there to receive it We will pay you for same upon delivery. Answer.”
8:05 p 11.. Enterprise, to James P. Ferrell: “We are not due you any cotton undei contract.”
It was agreed in this case that John Gatling, George Iy. Beale, and James P. Ferrell were the agents of the plaintiffs during the time from the 20th to the 25th of November, 1899, inclusive; that John Gatling and George L,. Beale were at Elba, Ala., a distance of about 18 miles from Enterprise, where J. E. and W. E. Henderson were at that timé; that on the 22d, 23d, and 24th George E. Beale was at Elba and J. E. and W. E. Henderson were at Enterprise; that James P. Ferrell was during these days at Montgomery, a distance of about 120 miles from Enterprise; that during these days there was running regularly every morning from, Elba to Enterprise a regular passenger and freight train, which also ran in the afternoon or at night daily from Enterprise to Elba; and that Enterprise and Montgomery were also connected by passenger railway service, so that passengers could leave Montgomery one day and reach Enterprise the same afternoon. The proof all tended to show that the market value of cotton was higher on the 24th of November, 1899, than it had been on the 20th of that month. Numerous witnesses were examined and testified as to the price of cotton at different local markets in Alabama on November 24th, 25th, 27th, 28th, and 29th. Numerous witnesses also testified as to what was a reasonable charge per bale for purchasing cotton in the various local markets, ranging from 10 cents per bale to 50 cents per bale. There was also proof introduced as to the freight rate between these local markets and between each and Boston, Mass. The bill of exception shows all the evidence that was offered on the trial. We do not deem it necessary to recite it further than we have.
The judgment of the circuit court is reversed, and the cause remanded to that court, with direction to award the defendants therein a new trial.
(Jan. 7, 1902.)
Concurrence Opinion
I concur in the reversal because I think the circuit court erred in directing the jury that the amount of their “verdict should be $5,000.” I think that on the evidence the question as to the amount of the verdict should have been submitted to the jury.'