Humphry v. Farmers Union & Milling Co.

ELLISON, P. J.,

pro tem.

Plaintiff brought this action to recover damages for' the alleged breach of contract in and by which it was claimed that defendant agreed to sell to it eighty thousand pounds of recleaned pink beans.at the price of $6.35 per hundred pounds F. O. B. Stockton, California. After trial the court found that the contract was executed, as alleged in the complaint, and that the defendant neglected and refused to deliver the beans as therein contracted to be delivered to the damage of the plaintiff in the sum of $550, and entered judgment .against the defendant for that amount. The defendant appeals from the judgment.

The contract, if one was made, resulted from certain telegrams passing between the plaintiff and defendant.

For a reversal the defendant and appellant relies upon three propositions: First, that the telegrams did not constitute an agreement; second, that the seller was entitled to be paid at Stockton, and third, that if the place of delivery was Evansville, Indiana, damages should have been based upon the price at which respondent could have bought equivalent beans in markets nearest Evansville, Indiana, and not at Stockton.

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I. We are of opinion that a fair construction of the telegrams leads to the conclusion that the parties met upon a definite proposition and agreement. In the telegram of November 14, 1916, the defendant said: “Cannot sell at price you name. Can sell eighty thousand pounds pink $6.35 F. O. B. Stockton. Railroad says cannot furnish empty cars promptly. The prospect of shipment getting through

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unfavorable. Order subject delay and confirmation.” To this telegram the plaintiff, on November 15th, replied as follows: “Answering telegram accept pink $6.35. Must ship during November. Do the best you can.” This was not an unconditional acceptance of the proposition made in the telegram of November 14th, above quoted. The defendant had stated in his telegram of November 14th, that the railroad could not furnish empty cars promptly and that the prospect of shipments getting through promptly was unfavorable, and that the plaintiff must order subject to delay and confirmation. The answer to this telegram was that the goods must be shipped during November, which was not agreeing to accept the beans subject to delay. On November 17th, the defendant, however, telegraphed as follows: “Eighty thousand pounds recleaned pink beans ready. Car obtainable. Have your bank wire guarantee payment draft with bill of lading.” This was a statement by the defendant in effect that it could ship as requested by the plaintiff during the month of November, because it stated therein, “car obtainable.” It was a statement that there would be no delay, and that if the beans were bought they could be loaded at once, but it contained a new proposition which had not been suggested before, namely, “have your bank guarantee payment draft with bill of lading.” On November 18, 1916, the plaintiff’s bank, the Citizens National Bank of Evansville, Indiana, wired the defendant as follows: “We guarantee payment your draft bill of lading attached, Evansville, commercial pink beans at $6.35, subject permission inspection on arrival.” This was a meeting of the minds of the parties upon the same terms and conditions, save and except that the last telegram referred to had in it these words, “subject permission inspection on arrival.” The matter of delay in shipment had been eliminated, the request that the bank guarantee payment had been accepted, and all conditions imposed by defendant had been met, qualified by the added suggestion that the beans would be subject to inspection on arrival.