298 F. 377 | 8th Cir. | 1924
The parties mentioned in this record are: The Collins-Dietz-Morris Company, referred to as Collins, plaintiff below, wholesale grocers, located in Oklahoma City; the Meinrath Brokerage Company, referred to as Meinrath, defendant below, merchandise brokers, with offices in Oklahoma City and elsewhere; the Alton Mercantile Company, referred to as Alton, wholesale grocers of Enid, Okl.; and W. H. Edgar & Son, referred to as Edgar, of Detroit, Mich.
It appears that Alton had purchased from certain refinérs 1,500 bags of sugar (100 pounds each), with the intention, like the other parties concerned, of reselling. On April 23, 1920, Meinrath, acting as
Alton, as was customary, drew drafts on Collins with bills of lading attached, sending copies of the invoices to Meinrath. These were presented to Collins through a bank on June 15th. Collins gave checks «in payment, and took up the drafts- and bills of lading, in ignorance of the mistake made in the shipping instructions. When Meinrath received copies of the invoices, they discovered that Alton had disregarded the shipping instructions. Mr. Gillespie; a representative and employee of Meinrath, immediately called up Collins and inquired as to the point of origin of the shipment. Collins asked why this information was desired, whereupon Gillespie stated that Alton had -shipped the consignment in two cars, instead of three, and had also made a mistake in destinations. ,He admits that he did not call Collins to inform him of the mistake. Collins immediately returned the bills of lading and drafts to the bank and received back his checks. Thereafter Meinrath tried to persuade Collins to pay the Alton drafts, assuring them that Edgar would waive the mistake and accept the shipment. This Collins declined to do, unless Meinrath would first obtain assurances from Edgar to that effect, which were not forthcoming.
The day following Gillespie, representing Meinrath, went into conference with the Collins firm and renewed his request that they take up the Alton drafts, and according to Collins’ story orally promised that if Collins would recall and pay the Alton drafts, and draw drafts with bills of lading attached on Edgar, that Meinrath would pay Collins any loss or damage they might sustain thereby. Meinrath denies that any such promise was made. Collins further states that in reliance upon this promise he thereupon paid the Alton drafts and forwarded the bills of lading to Edgar with drafts attached. A day or so later Edgar informed Meinrath that he would not pay the drafts, and on June 21st the same were duly protested. Upon learning of this Collins notified Meinrath that they would look to them for reimbursement in accordance with the oral guaranty.
Meinrath immediately got in touch with Edgar, and stated that there had been an error in the shipment, and asked them to help them (Meinrath) out. An arrangement was thereupon entered into between them, by which'Edgar was allowed to take the bills of lading from the bank, divert the cars to new destinations, unload part of the same at Detroit, and attempt to dispose of the sugar. Collins, atsMeinrath’s request, instructed the bank accordingly, and, further, to reduce the drafts $200
A short time after the Detroit bank again took up the matter of payment with Edgar, who claims that immediate payment was demanded, contrary to the new understanding. Edgar refused to pay and declined to have anything more to do with the transaction. This action was based upon a letter that the Detroit bank received froni its correspondent bank in Chicago, through which the drafts and bills of lading 'went. The evidence shows that this communication was one of inquiry only as to the status of the matter, and all the Detroit bank did was to call in Edgar’s representative, who read the letter. Edgar was not justified in construing it as a demand for immediate payment. In any event Collins was not responsible for this and is not liable for Edgar’s refusal to pay the drafts. The bills of lading were thereafter returned to Meinrath, who proceeded to sell one of the two cars of sugar and remitted the proceeds to Collins, who gave him credit for the amount. The balance Meinrath stored, and as far as the record shows was never disposed of. Collins thereupon brought this suit against Meinrath on its guaranty for the loss they had sustained.
The jury, under proper instructions, found as a matter of fact that Meinrath had made the oral promise to save Collins harmless on account of having paid the Alton drafts, after Edgar’s refusal to go ahead with the first deal. There was a clear conflict of evidence on this question, and we see no reason to disturb the finding. The questions we find necessary to discuss are: First, whether the oral promise that the jury found Meinrath made to Collins is void under the statute of frauds; and, second, error in the admission of.evidence.
Alton’s failure to give proper shipping directions had relieved Collins from their agreement with Alton, and likewise released Edgar from his obligation to Collins; so there was no existing liability of Edgar in favor of Collins that Meinrath could have guaranteed. The conduct of the parties at the time showed this to be their understanding. Meinrath admitted in effect that Collins had the right to turn down the Alton drafts. As we construe the agreement that the jury found was entered into Meinrath in effect said to Collins: If you will pay Alton, in spite of his breach, and then draw on Edgar, and see if he will not waive
Counsel for plaintiff in error overlooked the important fact that Meinrath not only stated he would be liable to Collins in the event Edgar refused to take the shipment, but that he specifically requested Collins to pay Alton a sum of money that Collins had already refused to pay. It is clear, therefore, that Meinrath’s engagement was an original agreement, and clearly not subject to the defense of the statute. 27 Corpus Juris, § 15, p. 130, and cases cited; Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826; Knight v. Kiser (C. C. A.) 271 Fed. 869; Lindley v. Kelly, 47 Okl. 328, 147 Pac. 1015; 27 R. C. L. pp. 483-484.
This situation is not changed by the subsequent transactions referred to as the trust receipt agreement. That was brought about solely by Meinrath, and what Collins did therein was to accommodate the former. Edgar’s failure to perform, whether justified or not, cannot be laid at the door of Collins, for Meinrath knew at the time that Collins was looking to him for reimbursement. The court, however, submitted Meinrath’s theory of the trust agreement, and Collins’ alleged breach of it to the jury, under proper instructions.
“Immediately on leaving our office after agreeing to protect us against any loss, tliat lie called tlie Alton Mercantile Company at Enid and tliat Alton Mercantile Company agreed to protect them fully in case they sustained any loss by reason of their agreement to protect us. He says he couldn’t get Alton to do anything, they couldn’t get him to make a move. And I told him I didn’t see where we were gaining anything by waiting; that the case wasn’t changing any; that the value of the sugar wasn’t going to increase any; that, if anything, it would be worth less; the thing was getting worse instead of better all the time. But at the same time he kept asking us to wait and said they would work it out some way. As a result we waited about six or eight months before we brought any action against them.”
The judgment of the lower court is affirmed. ¡