Hatcher v. Ferguson

DUNN, J.; This action was brought by tbe plaintiff against tbe defendant for $3,979.40, alleged to be tbe difference, on tbe first day of September, 1916, between tbe contract price of 4,140 lambs and tbe market value thereof on said date, and also for tbe sum of $2,070 theretofore paid defendant by plaintiffs on tbe following contract: — 642 — “SHEEP BILL OF SALE. “June 17th, 1916. “This is to certify that I have this day sold to Hatcher & Snyder not less than 6400 head of unshorn lambs out' of my flocks, 15 days notice, sellers option at the price of 8‡ per pound to be delivered F. O. B. cars at Ketehum between the 1st day of August, 1916, and the 1st day of September, 1916. Said lambs to be free of body wrinkles, from scab and all other diseases. I further agree that I will not top my herds before making delivery of this contract. At time delivery is made the lambs to be in good merchantable condition, to have dry fleeces and the minimum weight of any lamb on this sale shall not be less than 60 pounds after the same has been in a dry corral without feed and' water for at least twelve hours. “Received on this bill of sale, as part payment, the sum of $3200.00 Dollars, balance to be paid when delivery is completed. “ - old ewes, (shell to be thrown out) at - per-. “ -cull lambs, (Nothing under forty pounds) at- 'per -. “Both subject to conditions named in contract above. “BARLOW FERGUSON.” A similar action was brought at the same time by the same plaintiffs on the same kind of contract against J. W. Newman for $3,584.10, which plaintiffs alleged to be the difference on September 1st, 1916, between the contract price of 4,404 lambs and the market value thereof on said date, and also for the sum of $2,200 theretofore advanced to defendant Newman by plaintiffs on said lambs. The cases were tried together before the same jury and separate verdicts returned in favor of the defendants. Judgment was entered thereon and the plaintiffs have appealed. The appellants have specified twenty-five errors, the first and second of which are that the verdict is not sustained by sufficient evidence or any evidence, and that the verdict — 643 — and judgment are contrary to the law. All the others are based upon the giving or refusing of certain instructions by the court. It will not be necessary to examine these alleged errors singly, for the issue to be determined by this court is conceded by counsel on both sides to be limited to the question whether or not there was delivery of the lambs as provided for by the contract. Incidental to and bearing upon the question of delivery is the construction of the expression, “f. o. b. cars,” as used in the contract, and also the question whether the respondent had a right under the contract to demand payment in cash, as he is alleged by the appellants to have done. The sole question to be determined by the jury in this case was whether the respondent had complied with his contract in delivering to the appellants at Ketchum, Idaho, f. o. b. cars on August 31, 1916, the remaining 4140 head of lambs covered by the contract set up in the complaint. As to the meaning of the expression “f. o. b. cars,” the court instructed the jury as follows: “The court instructs the jury that the abbreviation f. o. b. as used in the contract dated June 17, 1916, and read to you in evidence in this case means ‘free on board’ and indicates that the property purchased shall be delivered on board the cars without expense to the buyer at the point designated in the contract.” Bouvier’s Law Dictionary defines “free on board” as: “A phrase applied to the sale of goods which denotes that the seller has contracted for their delivery on the vessel, car, etc., without cost to the buyer for packing, portage, cartage, and the like.” The instruction given by the court substantially conforms to the definition last above quoted and correctly states the law so far as this contract is concerned. There was little conflict .in the evidence, and we are of the opinion that the instructions given by the court sufficiently covered the case to enable the jury to clearly understand the issue and to decide it according to the evidence, and a careful examination of the record convinces us that — 644 — their conclusion was correct. We have examined the other instructions given to the jury, as well as those requested by appellants and refused, and we are of the opinion that there was no reversible error committed by the court either in the giving or refusing of instructions. Much attention has been paid by counsel in their briefs to a discussion of the question as to whose duty it was under this contract to obtain the- cars for the shipment of the lambs, but we are of the opinion that no such question arises in this case. It appears that cars for the shipment of the lambs were furnished at the request of the respondent. No default in that regard is charged, so it is immaterial whose duty it was to furnish them. The respondent was at Ketchum in person when the lambs were delivered there and was present at the loading of the cars. The appellants were represented by Otto J. Hatcher and James R. Hatcher, son and nephew respectively of one of the appellants. These agents were in communication with the appellants at Denver, Colorado, and numerous telegrams passed back and forth between them and their principals on August 30th and 31st. The only difficulty in the way of an amicable handling of the lambs was the fact that on August 30th, when the lambs were about ready to be loaded, word came to the railroad agent at Ketchum that owing to an embargo which had that day •been placed on shipments east, no livestock would be received by the railroad company for shipment to any point unless delivery at destination could be made on or before noon September 2d. This embargo was due to a threatened strike of the railroad employees all over the system. The question then arose between the respondent and the agents of the appellants whether the appellants would receive the lambs that were then about to be loaded on the cars. It was the desire of the appellants that shipment should be made to some eastern market, probably Chicago, and both the• respondent and the appellants’ agents appear to have made every possible effort to induce the railroad company to accept shipment of the lambs to such eastern — 645 — market, but -without avail. The appellants’ agents assisted in and superintended most of the loading, apparently undecided whether the lambs would finally be accepted or not. It appears from the testimony of some witnesses that at one time the' respondent was advised by Otto J. Hatcher, who was in charge of the appellants’ interests, that he would accept the lambs notwithstanding the embargo, but later, when they were almost completely loaded on the ears, according to his own testimony he announced to the respondent that he would not accept them. It is undisputed that at Ketehum there was no supply of feed to be had by which it would be possible to keep the lambs any length of time, so that when it was determined that they could not be shipped to an eastern market, it became necessary that they should be taken from Ketehum to some point at which feed could be had for them, for at that time it was unknown either to appellants or respondent how long the embargo would continue. In making shipment from Ketehum the only place to which the railroad company would bill the lambs was Shoshone, Idaho, and in order to get the privilege of loading them on the cars respondent was compelled to bill them to that point. We are unable to see, however, how the appellants were prejudiced by this contract made by the respondent with the railroad company. Their agents had apparently exerted every possible effort to have the lambs shipped to some point farther east, but without success. If appellants had accepted the lambs they could have done nothing with them but ship them to Shoshone. Their inability to ship beyond that point could not by any means have been legally charged to respondent. The aim of appellants in this case has been to show that the contract imposed upon the respondent the burden of billing the lambs to an eastern market, and that in the absence of such billing, delivery according to contract was not possible, but we think no such construction can fairly be placed upon said contract. There is in the contract nothing that would warrant this construction, and the evidence shows — 646 — no agreement outside of the contract by which the respondent was to become in any sense responsible for the destination of the lambs. When he loaded them on the cars at Ketehum without expense to the buyer he discharged the obligation of his contract, and the fact that ■ the buyers were unable on account of the embargo to. ship farther than Shoshone was not sufficient reason for them to refuse to accept the lambs and pay for them. The appellants also complain because of the refusal of the defendant to accept in payment for said lambs a draft on Hatcher & Snyder at Denver. Their claim is that at the time of the previous shipment of a part of the lambs included in the contract payment was made by means of such a draft, and that if respondent intended at this time to refuse .payment in the same manner, it was his duty to give them timely notice in order that cash might be provided at the remote point of Ketehum. Under all the circumstances surrounding this transaction we think the appellants have no ground to complain of this action of the respondent. The situation at the time of the delivery of these lambs at Ketehum was quite extraordinary, and it is not strange that after the controversy arose over the acceptance of the' lambs the respondent should be somewhat doubtful as to the propriety of delivering 4,000 head of lambs to the appellants with nothing more certain in the way of payment than a draft on appellants. The evidence shows, however, that the respondent did not stand upon a demand for cash alone. On the evening of August 30th, J. R. Hatcher, one of appellants’ agents, wired W. A. Snyder, one of the appellants, as follows: “Ferguson requests that you have bank wire him that draft amounting to sixty thousand will be honored. ’ ’ Instead of having his bank wire Ferguson that it would honor drafts on appellants amounting to $60,000, Snyder himself on the same day wired this reply to Ferguson: “I will pay all drafts drawn on me by Otto J. Hatcher, and — 647 — if you doubt my responsibility kindly wire United States National or Hamilton National Bank of this City.” The request of the defendant that he be given the bank’s assurance that the draft on plaintiffs for $60,000 would be honored, was perfectly reasonable under the circumstances, and it is no reflection upon the financial responsibility of Mr. Snyder to say that the respondent in such a situation had a right to reject Mr. Snyder’s personal assurance that' he would pay and to insist upon a guaranty from Mr. Snyder’s bank. In the absence of the guaranty that respondent asked as to the payment of the draft on appellants, we think he was fully warranted in refusing to accept anything in payment except cash. A careful examination of the record in this case convinces us that there was not only sufficient evidence to warrant the verdict and judgment, but that a verdict and judgment in favor of the appellants would have been clearly against the evidence, which abundantly establishes the fact that delivery was made by the respondent to the appellants according to the terms of the contract set out in the complaint, and that appellants refused to accept. The appellants contend that it was the duty of the respondent on September 2d, after the embargo had been lifted, to deliver these lambs according to the terms of the contract, but the appellants had had their opportunity to accept them; they had defaulted by absolutely refusing to accept them when they were tendered, and they have no right now to complain because the respondent, after having been compelled to take the risk of holding them indefinitely during the existence of the embargo, refused to deliver them after the embargo was lifted. At the time of the refusal of appellants to accept the lambs according to the terms of the contract they knew that it was easily possible that before these lambs could be shipped to market the respondent might be compelled to expend in their care a sum far in excess of the amount of the deposit that he held. Knowing these facts, appellants refused to perform their part of the contract and to assume the burden of caring — 648 — for the lambs during the embargo, a burden which clearly belonged to them and not to the respondent. The judgment is affirmed, with costs to the respondent. Hice, C. J., and Budge and McCarthy, JJ., concur.