L. G. Stresovich & Co. v. Kesting

Ellison, J. Plaintiff resides and does business at. San Francisco, California. Defendant resides and does business at Kansas City, Missouri. Plaintiff sold to defendant a car load of cabbage at eighty-five cents per hundred pounds. Defendant refused to receive the car, or to pay for the cabbage, and plaintiff disposed of the cabbage at a net loss from what he was to receive of defendant, of $200.27; and brought the present action to recover the latter sum, and lost his case in the trial court. [61] The contract of sale was evidenced altogether by letters and telegrams as follows: “Kansas Citx, Missouri, 2-3, 1893. L. G. Stresovich <& Co., San Francisco, Cal. Gentlemen: — I am in the market for several cars of cabbage. I am handling one or two cars a week and •would like to make some arrangements with a responsible house to keep me supplied. If you have some ■good, solid stock to offer, heads not to run larger average than six pounds, please wire me lowest price and I will order a car. Cabbage selling to-day seventy cents. Yours truly, H. Kesting.” In response to this letter, plaintiff telegraphed defendant as follows: “Can ship car cabbage about Wednesday; eighty-five per hundred.” To this telegram, defendant responded by wire: “To L. G. Stresovich S Co., - San Francisco. “If medium, solid heads, ship car cabbage.” “H. Kesting.” It will thus be seen that the contract was made for the cabbage at an agreed price, and that the cabbage were, by defendant’s directions, to be shipped to him by the plaintiff. The evidence shows, without dispute, that plaintiff attached to the bill of lading, sent through plaintiff’s bank at San Francisco, via of a bank at Omaha, to a bank at Kansas City, an item of expense for loading and freighting the cabbage to San Francisco from outlying gardens, the sum of $14.10; and that when the draft was presented to defendant, he refused to pay the same, on account of this item only. That when payment of the draft was refused, plaintiff was notified of the reason and immediately, by wire, notified bank at Kansas City to deduct the item. This was done and demand again made of defendant, when he [62] again refused to pay and also refused to receive'the car of cabbage. The only matter of dispute was the charge of $14.10. It seems that defendant contends that he purchased the cabbage, F. O. B., — that is to say, free on board the cars at San Francisco; and evidence was taken as to what the letters “F. O. B.” meant and included. There is not a word in the evidence showing the contract, which mentions such a term. In the correspondence between defendant and plaintiff, after the difficulty arose, defendant asserted he had so purchased, demanding that the item be deducted, and plaintiff denied it; but plaintiff’s instructions to the bank shows he waived the matter by directing the item to be deducted. The court gave a declaration of law, that if the cabbage were to be delivered to defendant, “F. O. B.” at San Francisco, and if plaintiff attached a sight draft to the bill of lading, with instructions not to deliver the bill of lading to defendant, until the payment of the draft, then the finding must be for defendant. This should not have been given. When the goods were sold and nothing said about time of payment, it will be presumed that the sale was for cash. And for the purpose of collecting such payment, plaintiff had a right to attach the sight draft with instructions not to deliver the bill of lading until it was paid. That such was the defendant’s view of the matter is apparent from the fact that he ordered the plaintiff to ship the cabbage to him. Conceding the cabbage was to be delivered free on board the cars, that does not mean that they were not to be paid for on delivery; and for the purpose of payment it is apparent that the delivery was to be at Kansas City. This, as before stated, was the construction the parties gave the contract. It was necessarily their intention; for the purchase itself, nothing [63] appearing to the contrary, meant a cash sale, and defendant not sending the cash to San Francisco, but ordering the goods to be shipped, shows that he understood the cash payment would be made on delivery at Kansas City. Plaintiff had the same view, for he shipped without receiving the money, and attached a sight draft to the bill of lading, with instructions not to deliver till draft was paid. The court gave a further declaration that the finding must be for defendant, for the reason that plaintiff included the item of $14.10 in the sight draft. This was error, for the reason that, conceding plaintiff should not have included said item, yet his mistake, when he immediately ordered the item deducted, did not justify defendant refusing to pay for,, and receive the goods; especially as defendant so recognized the matter by asking plaintiff to deduct that item. It is evident that the two theories shown in these declarations are what prevented plaintiff from recovering judgment in the trial court. The case on the facts is plain enough; there is no substantial dispute in the evidence. Defendant only complained of the one item as aforesaid. An offer was made to deduct this and ' yet he refused to accept the car, or pay the money for the cabbage.' After determining the legal phase of the case, as presented by the instructions, as we have determined them, it is left quite plain that plaintiff should recover the amount of the difference between the best price to be obtained at Kansas City,, after the cabbage was left on his hands, and what he was to receive from defendant. This, added to the, freight charges and reasonable cost of crates in which cabbage was shipped, would cover plaintiff’s recovery. The judgment is reversed and cause remanded. All concur.