27 Kan. 286 | Kan. | 1882
The opinion of the court was delivered by
This was an action brought by Forbes Holton, J. P. Jones, John W. Knox and W. S. Foltz, partners, .doing business under the firm-name and style of the Croton Glass Works,, limited, against W. C. McPike and J. C. Fox, partners, doing business under the firm-name and
The plaintiffs bring the ease to this court on petition in error, and say in their brief, among other things, that the “plaintiffs contend that the judgment under the evidence should have been in their favor for the sum of $1,028.23 and costs; and they bring the case here for review on a case-made, which contains all the evidence offered and received in the court below, asking this court to so modify the judgment of the court below as to give plaintiffs judgment for $1,028.23 and costs, instead of $716.04 and costs.”
And again, they say in their brief that, “judgment should be modified, and the district court directed to enter judgment for plaintiffs for the sum of $1,028.23, and interest from the 5th day of May, 1881, at 7 per cent, per annum, and costs.”
The plaintiffs also claim that the verdict of the jury is against the evidence, and that the court below erred in refusing to grant them a new trial. We shall proceed to consider this question.
“Window-Glass Works,
New Castle, Pa., Feb. 25, 1879.
“MoPike & Fox, Atchison, : quote you for three cars w. glass, the average each car to be same as car shipped you Dec. 4, 1878: 75,10 and 10 percent. F.O.B. here for single, and 2J per cent, additional discount for double strength. Cash in fifteen days; freight to Chicago guaranteed you at 15-|- cents per 100 weight. Draft,on invoice as before. Prices cannot remain as low as I quote you, so I prefer not to make you a proposition for over three cars. A substantial advance in ash within a few days points unmistakably to a much firmer market next month. Please advise by early mail your wishes. Yours truly,
Forbes Holton.”
On March 2, 1879, MePike & Fox, by letter of that date, accepted Holton’s proposition as follows:
“March 2, 1879.
“Forbes Holton, Neio Castle, Pa.: We will accept your recent proposition, with this amendment: You to ship one (the first) car when you get it ready for shipment; one in ten days thereafter, and the last (3d) in ten days after the .second. Will send memorandum of one or two cars within 48 hours, and the other soon thereafter. In the meantime will expect your answer. Yours, MoPike & Fox.”
On March 7, 1879, Holton, .in answer to this letter of MePike & Fox’s, writes to them as follows:
“ Window-Glass Works,
New Castle, Pa., March 7, 1879.
“Messrs. MePike & Fox, Atchison, Kansas — Gentlemen: Your favor 2d at hand. I accept your proposal for three cars window, average to be same each car as shipment of Dec. 4, Í878, one car to be shipped you every ten days after first car is sent forward. Dis. 75,10 and 10 single, and
(My letter, Feb. 25, 1879.) Forbes Holton.”
These letters constituted the contract between Holton and the defendants. The first two cars of glass were shipped and received and paid for in accordance with the contract; but the third car contracted for has never been shipped or received, unless the car for which this suit was brought (which was shipped and received in January, 1880) shall be considered such third car. Many other letters passed, between Holton and the defendants during the year 1879, the defendants all the time urging Holton to send them the third car of glass, and Holton continually promising them to do so and giving them fair excuses for not doing so, but not shipping the glass prior to January, 1880, among which letters are the following: ;
“New Castle, Pa., November 3, 1879.
“Messrs. McPike & Fox, Atchison, Kansas: I am now well up on back orders, and will reach yours during the next week or ten days. If advised by wire, I will ship you promptly on reaching your sizes, at 70 and 2J in 15 days — 5 per cent, additional for double strength — free on board cars here, with draft. The general advance in all kinds of material, and the general refusal of brokers to ship ash under old contracts, have resulted in a compromise. I have been compelled to thus write you, and will cancel your order if not hearing from you when sizes are reached to ship.
“Yours truly, Forbes Holton.”
To this letter McPike & Fox replied by telegram, as follows:
“Atchison, Kansas, Nov. 8, 1879.
“Forbes Holton, New Castle, Pa.: Letter received. Ship car of glass first possible moment. McPike & Fox.”
On November 11, 1879, Holton again wrote defendants, as follows:
“New Castle, Pa., Nov. 11, 1879.
“McPike & Fox, Atchison, Kansas — Gentlemen: In accordance with your telegram, will ship the car-load of glass at 70 and 2J cash in 15 days, and 5 per cent, additional on D. S., F. O. B., current list. The glass will go forward in ten days. Yours truly, Forbes Holton.”
“Atchison, Kansas, November 12, 1879.
“Forbes Holton, New Castle, Pa.: Will not change sizes. ■Ship as per memorandum of March 12. Please obtain us best rate of freight. Rates from Pittsburgh via Chicago are 50 cents. Yours, McPike & Fox.”
On December 30, 1879, Holton wrote a letter to McPike & Fox, as follows:
, “New Castle, Pa., Dec. 30,1879.
“McPiJce & Fox, Atchison, Kansas — Gentlemen : I will ship you to-morrow the car of glass, sizes for which have been here for some time. I regret it has not been in my power to ship you earlier; now only coming up with my old contracts. In order to pull up I started up the old Croton Glass Works, operated by me during the past year, and will ship the car from these works. Within next few days I will have every old contract wiped out, and will be in situation to ship you promptly if in want of further glass, now having 18 pots in operation. I trust the long delay will not prove detrimental, as glass comes in to you cheap; (discount now 60 per cent, in Pittsburgh.) I trust to hear from you for your further supply.
Very truly yours, Fokbes Holton.”
Sometime in January, 1880, prior to-the 15th, McPike & Fox received the following letter from John W. Knox, treasurer of the Croton Glass Works, New Castle, Pa., to wit:
“New Castle, Pa., January 3, 1880.
“McPiJce & Fox, Atchison, Kansas — Gentlemen: We have this day shipped you one car-load of window glass over the Franklin railroad, amounting to $943.85, and have drawn on you through Foltz & Son’s bank, at ten days’ sight, for the same, kindly trusting you may honor the same. We have taken great pains in selecting material. Our labor is the best that can be had, and the production of our factory is excellent. Hoping the goods just shipped to you may reach you safely in good order and give satisfaction. Please favor us with another order. Kindly trusting our business relations may prove pleasant, we are,
“Yours respectfully, John W. Knox, Treasurer.”
“Atchison, Kas., January 15,1880 — 4 p. m.
“ John W. Knox, Treasurer Croton Glass Works, Limited, New Castle, Pa.: Is car of glass shipped us by you the same one we bought of Forbes Holton?
“(15 — Pd.) McPike & Fox.”
And in answer to this dispatch, the defendants received by telegraph the following reply:
“New Castle, Pa., January 15, 1880.
“McPike & Fox: It is Holton’s order, and same quality of glass. John W. Knox.”
There was considerable correspondence following between the plaintiffs and defendants and the defendants and Holton, which we think it is not necessary to give. The defendants were at all times willing to pay for the glass in accordance with the contract entered into between themselves and Holton; but they were not willing to pay the amount which the plaintiffs claimed they should pay. As additional facts, we might say that the evidence showed that Forbes Holton had operated the Croton Glass Works from the time of the commencement of the first correspondence between Holton and the defendant, up to July 1, 1879, when he quit operating the same and purchased other glass works in West New Castle.' The Croton Glass Works were allowed to remain idle until about December 25, 1879, when the present company, the plaintiffs in this ease, put them in operation. The present company, the Croton Glass Works, limited, was organized in-November, 1879, by Holton and the other plaintiffs in this case. After the Croton Glass Works, limited, got fully into
We think the decision of the court below was correct, and its judgment must be affirmed.