101 F. 763 | 8th Cir. | 1900
This case presents but one question, and that is whether the plaintiff in error, L. Schreiber, made a contract to sell and deliver to C. C. Andrews and C. G. Benton, the defendants in error, 15,000 bushels of No. 2 hard wheat, whose compliance with the contract in grade and weight was to be determined by an inspector and weighmaster at Kansas City, or a contract to sell and deliver out of a larger quantity to be shipped by him 15,000 bushels of No. 2 hard wheat which the inspector and weighmaster were to select out of the larger quantity, and identify. If he made the former contract, the judgment below must be affirmed; if the latter, it must be reversed. It is conceded that the parties made a contract for the sale of wheat subject to an inspection and determination of its grade and weight at Kansas City. The question is whether that inspector was to determine how far the wheat complied with the contract, and thus to form a basis for the measure of damages for failure to comply with it, or was to- select out of a larger quantity, and thus to identify the.wheat sold; and this question must be determined by the correspondence which constituted the contract, and by the acts of the parties under it. That correspondence, so far as it is material to this issue, ran in this way: On July 23, 1897, Schreiber telegraphed from Otis; Kan., to the defendants in error at Kansas City, “Take fifty-eight, net, fifteen thousand bushels two hard.” On July
These conclusions of the court below are assailed on the ground that the agreement between the parties was that the vendor should ship a large quantity of wheat of different grades to the vendees, that the inspector should select out of all this wheat 15,000 bushels of No. 2 hard, that the vendees should buy and pay for this wheat so selected, and should hold all other wheat received from Sehreiber for him, and should turn it over to Fisher. There are several reasons why this contention cannot be maintained. In the first place, the contract was complete when the telegrams and letters of July 24, 1897, had