276 F. 502 | 6th Cir. | 1921
Defendant in error (hereinafter called plaintiff) was engaged at limiting ton, W. Va., in buying and selling coal. Plain!iff in error (whom va: shall call defendant) was a jobber of coal at Hamilton, Ohio. Plaintiff sued for the purchase price of 100 cars of coal alleged to have been sold to defendant by the Carbon Hills Collieries Company, a producer of coal at Huntington; plaintiff basing its right of recovery upon subrogation by virtue of an alleged payment by it of the indebtedness from defendant to the Collieries Company for the purchase price of the coal, in pursuance of an alleged assumption and guaranty by plaintiff of the payment and collection oC defendant’s indebtedness to the Collieries Company. The meritorious defense presented was that defendant was not the purchaser of the coal, but was merely the Collieries Company’s agent in a sale thereof to the Haniillon-Otio Coke Company of Hamilton, Ohio, which defendant asserts was the Collieries Company’s actual debtor. Plaintiff’s succession to the Collieries Company’s asserted original right of recovery is also challenged. A motion to direct verdict for defendant was overruled, and the case submitted to the jury under a charge which, is not in the record, nor made the subject of criticism; the grounds of the motion to direct being lack of evidence not only of defendant’s agreement to purchase, and of the existence of a cause of action on (he theory of subrogation, but also of plaintiff’s alleged payment for the coal prior to the beginning of suit; also variance between the petition and proofs as to the purchase price of the coal. A motion for new trial was overruled. This review involves also certain subsidiary questions, which will appear in the course of the opinion.
“100 ears r. o. m. [run of mine] at $2.15 per ton £. o. b. mines. St art shipment January 20th. Three ears daily. Shipping notices to ns promptly. Above price less 10c commission to us. Please acknowledge receipt of this order. Mail all papers and charge account of Sloal-Darragh Company, Hamilton, O.”
The words we have italicized were printed; substantially all the remaining words we have quoted were typewritten. This order was inclosed in a letter from an officer of the defendant to the manager of the Collieries Company, containing among other things, this statement:
“Please find inclosed herewith our formal order No. 504 at the special price agreed upon, and, while you are at liberty to invoice direct upon the consignee, yet we believe we could get better service all around if you mail invoices*504 to us. I will leave this matter optional with you, but would like you to advise us which you expect to do as soon as possible.”
Plaintiff, which was then the selling agent of the Collieries Company, on January 16th acknowledged to defendant its “order for 100. cars of Eagle gas coal for the Hamilton-Otto Coke Company,” the letter of acknowledgment containing this statement:
“We have instructed the O. and O. people to mail you promptly postal notices and our office will render you the invoices as per your suggestion, which is absolutely in line with our ideas.”
The following acknowledgment was appended to plaintiff’s letter:
“We thank you for your order No. 564 for 100 cars Eagle gas coal to be shipped at rate of three per'day to the Hamilton-Otto Coke Company, * * * price $2.15 f. o. b. mines, less-10 cents per ton commission to you.”
On January 20th the Hamilton-Otto Company gave to defendant its written order for shipment to its address “mailing memo, bill and bill lading the day of shipment, and regular invoice in duplicate as promptly as possible” of “three cars per day of Eagle coal from Carbon Hill Collieries Company, Logan Co., W. Va., to be r. o. m. at-$2.15 per ton f. o. b. mines. * * * This order not to exceed 100 cars.” The coal was consigned by the Collieries Company to the Hamilton-Otto Company, and invoices were made out against and mailed to defendant covering the various shipments. The evidence tends to show that the billing was at $2.05 per ton. On February 21st, in reply to plaintiff’s, inquiry whether check for the January account had been mailed, defendant inclos.ed its check for $3,615.49 “covering the January shipments, as per your invoices,” at the same tiriie advising plaintiff of the receipt of its telegraphic inquiry and of the fact that the check was mailed. Later, and on the evening of that day, bankruptcy proceedings were instituted against the Hamilton-Otto Company. Defendant thereupon stopped payment of it§ check. There was other testimony, both written and oral, addressed to the merits of the controversy. It is not fairly open to question that there was •sufficient evidence to justify submitting the contention that defendant, and not the Hamilton-Otto Company, was the real purchaser of the coal and was the Collieries Company’s actual debtor, provided oral testimony of the agreement was properly admitted, against defendant’s insistence that the written order of January 14th, and its acceptance of January 16th, clearly and unambiguously showed that defendant acted merely as agent for the Collieries Company in the sale of the coal to the Hamilton-Otto Company.
Without conceding that, in considering the admissibility of oral testimony, we are limited to the written order and its acceptance, and may not look to defendant’s letter accompanying its order, we are of opinion that the order and acceptance, taken together, do not clearly and unambiguously show a contract of agency only.
*504 1 It is immaterial to the- conclusion reached whether or not defendant’s letter accompanying its order is considered part of the original contract.
We cannot agree with this contention. There was evidence that plaintiff, for a valuable consideration from the Collieries Company, guaranteed its accounts for January, 1919, and thereafter, thus including the debt in question. Defendant treats this as a claimed assumption and guaranty of payment and collection of the account. We may safely accept that construction.
As was said by the District Judge in overruling a demurrer to the petition:
“The right of subrogation arises whenever one, under compulsion or to protect his property interests, pays a debt which ought in equity and good conscience, to be paid by another.”3
A prominent illustration is found in the general rule, applicable not only to fire, marine, accident, and casualty insurance, but to indemnity contracts of all kinds, that the indemnifter, on paying to the idemnified the amount of the loss on the property involved, is subrogated in a corresponding amount to the indemnified’s right of action against any other person responsible for the loss. Hall v. Railroad Companies, 80 U. S. (13 Wall.) 367, 371, 20 L. Ed. 594 (insurance against fire); Travelers’ Ins. Co. v. Gt. Lakes, etc., Co. (C. C. A. 6) 184 Fed. 426, 429, 107 C. C. A. 20, 36 L. R. A. (N. S.) 60 (casualty insurance); United States v. Fidelity & Guaranty Co. (C. C. A. 6) 247 Fed. 16, 20
In our opinion the case was properly submitted to the jury, and without prejudicial error. The judgment of the District Court is affirmed.
All italics in this opinion are ours, unless otherwise indicated.
The broad rule is thus stated in Pomeroy’s Eq. Jurisp. (2d Ed.) § 2345: “Whenever a party discharges an obligation in performance of a legal duty— that is, an obligation for the performance of which he was legally bound — , but for which his liability was subsequent to that of another party, he is entitled to be subrogated to, and to have the benefit of, all rights of the creditor and all securities which may at any time have been put into the creditor’s hands by a party whose liability is prior to his own, or which the creditor may-have obtained from such party.”
There is nothing to the contrary of this principle in Barber Asphalt Pav. Co. v. Traction Co. (C. C. A. 6) 202 Fed. 817, 121 C. C. A. 125, whore it was hold that a guaranty by the paving company to the. city to keep the pavement in good repair for a give:* period was not a contract of indemnity, imposing a r-'C-.Oiiclai'y liability only on the paving company, so as to entitle it, on being compelled to pay for repairs to the pavement, to subrogation to the city’s right of recovery against the traction company for so constructing its road as to causo 1ho defects in the pavement.
The judge’s announcement was apparently oral. It is not in the record, and counsel seem to disagree as to what it was.