Birdsong & Co. v. American Peanut Corp.

Crump, P., delivered the opinion of the court. Tshe American Peanut Corporation procured a judgment in the trial court against Birdsong and Company, Incorporated, in an action of assumpsit, for $2,198.21, being the purchase price of goods sold to the defendant — 760 — by tbe plaintiff. This judgment is before us for review on a writ of error awarded upon tbe petition of tbe defendant in tbe case, Birdsong and Company, Incorporated. There are three assignments of error. We will consider first an assignment that tbe judgment is “contrary to tbe law and tbe evidence and without evidence to support it.” Upon tbe trial of tbe case, a jury was waived and all matters of law and evidence were submitted to tbe judgment of tbe court Under such circumstances we are governed by tbe provisions of section 6363 of tbe Code of Virginia. According to tbe settled principles relative to tbe application of tbis statute, in tbe event of conflicts in tbe evidence or in inferences to be drawn therefrom, tbe evidence for tbe plaintiff or fair inferences therefrom must prevail. Tbe case is here practically as on a demurrer to tbe evidence, and tbe burden is on tbe defendant to show that tbe judgment is contrary to tbe evidence or without evidence to support it. Burks PI. & Prac. (2nd ed.) 564; Updike v. Texas Company, 147 Va. 208, 136 S. E. 591; Norfolk and Western Railway Company v. Thayer, 137 Va. 294, 119 S. E. 107; Citizens Bank v. McMurran, 138 Va. 657, 123 S. E. 507. The plaintiff, tbe American Peanut Corporation, claimed a right to recover of tbe defendant, Birdsong and Company, tbe amount sued for as tbe purchase price of a carload of peanuts alleged to have been sold to tbe defendant. Tbe place of business of tbe plaintiff was in tbe city of Norfolk, Virginia, and that of tbe defendant in tbe city of Philadelphia. On tbe 29th day of August, 1924, Birdsong bad a conversation over tbe long distance telephone with an officer of tbe plaintiff. It was then agreed that the defendant would buy from tbe plaintiff five carloads — 761 — of No. 2 Virginia shelled peanuts at seven and three-quarters cents per pound, to be “as good as any other shipper,” that is to be as good as any standard grade of No. 2 Virginia shelled. An exchange of letters followed from which it appears that the peanuts were to be shipped during September and October, in “scattered shipments” as ordered by the buyers, f. o. b. shipping point (Norfolk), to be paid for on sight draft with bill of lading attached, inspection to be allowed at point of delivery. The first four carloads were shipped and received, there having been a complaint by the buyer as to the grade of the'fourth carload, the contention concerning which was settled by arbitration. This litigation arose over the last carload shipped. This carload was under sale by the buyer to parties in Chicago, to whom the sale had been negotiated for Birdsong and Company by one Sudler their agent or broker at the latter place. Consequently Birdsong and Company instructed the seller at Norfolk to ship this last carload lot to Chicago on a bill of lading, “order notify” Sudler. Thereupon the seller, on October 21, 1924, shipped this carload to Chicago, under uniform order bill of lading to the shipper’s order, notify Oscar M. Sudler, inspection allowed. The seller then at once forwarded its sight draft on the buyer, with the bill of lading attached, to be paid at the Corn Exchange National Bank in Philadelphia. Upon the arrival of the carload in Chicago, the goods were rejected by Birdsong’s sub-purchaser at that place upon the ground that they were not up to grade. Birdsong was notified of this rejection by a telegram or night letter from Sudler received on the morning of October 28th. He at once wired the Peanut Corporation that the car of peanuts was “off quality” and rejected. Then ensued a telephone interview between — 762 — the parties and. an exchange of telegrams, the final result of which was that they agreed upon an arbitration, which was confirmed by letters. As stated in a letter of that date from the defendant to the plaintiff, “We presume you want to handle this the same as the last, and have wired you to name your Chicago arbitrator. In the event this rejection is sustained we will then talk at what price we can take the goods in. We certainly are exceedingly sorry that the goods did not come up to what we bought but if the arbitration states that the goods are in line with the way we bought them from you, we will pay the full invoice price.” A notice of the arrival of the draft was sent to the buyer by the Philadelphia bank on October 23rd, and the buyer was awaiting inspection and then arbitration before paying for the goods. The agreement to arbitrate was practically verbal and informal, and was to the effect that it should be had as in the instance of the arbitration concerning the fourth carload, in which L. S. Nachman was selected by the defendant, and J. B. Roberts by the plaintiff. The same two parties were notified and proceeded to inspect the peanuts and pass upon the right of rejection, the files of each party relating to the purchase and sale having been delivered to the arbitrators. Because of the absence of Mr. Nachman from Chicago, the inspection and decision of the arbitrators could not be made till November 5th. Apparently the decision was communicated to the parties on November 6th. On the afternoon of that day Sudler informed the defendant that the arbitration had been decided against it. The conclusion of the arbitrators was as follows: “Chicago, Nov. 5, 1924. “We the arbitrators selected in the controversy between the American Peanut Corporation, Norfolk, — 763 — Va., and Birdsong & Co., Philadelphia, Pa. Mr. J. B. Roberts represented American Peanut Corporation and Mr. L. S. Nachman represented Birdsong & Co. “After due reflection decided to call in a third arbitrator, Mr. H. H. Hart, to settle certain differences, and we find as follows: “In the absence of a signed contract, arbitrators were compelled to use correspondence which passed between buyer and seller, as a means of determining basis of sale. “After careful consideration we And in favor of the seller, and agree that the tender of No. 2 Virginia shelled peanuts constitutes a good delivery. “Respectively signed “J. B. Roberts, “L. S. Nachman, “H. H. Hart.” In the meantime, on October 31st, Wells, the agent of the delivering carrier at Chicago, called on the plaintiff by wire to “advise disposition” of the car as it had been rejected. In reply the plaintiff wired to have the peanuts delivered to the Monarch Refrigerating Company, if not accepted by Sudler, and instructed the bank in Philadelphia to deliver the bill of lading to the carrier for that purpose. This disposition of the peanuts was made, according to plaintiff’s testimony, to await the decision of the arbitrators and save demur-rage. Sudler knew of this storing of the peanuts, and the plaintiff company having directed the bill of lading to be turned over to the carrier, expected defendant to send them cheek for the purchase price, when the arbitrators decided the dispute. On November 7th the defendant company in Philadelphia sent a check to the bank there for the amount of the draft, together with the notice of October 23rd — 764 — from the bank calling for payment. The bank returned the papers with an endorsement that the bill of lading had been delivered to the carrier upon the order of the plaintiff. The defendant took no further steps toward payment. According to the plaintiff’s evidence they were expecting a cheek for the amount of the invoice, and finally on November 17th wrote to Birdsong and Company as follows: “November 17, 1924. “Birdsong and Company, “Philadelphia, Pa. “Gentlemen: “We call your attention to invoice of October 21st — • $2,198.21 covering car peanuts shipped to Oscar M. Sudler, Chicago, 111., which was arbitrated and decided in our favor; we have not received remittance covering this car. Please let us have your check by return mail covering same, and also favor us with more good business. “The shelled market is stronger this morning, and indications are for continued firmness from information we have from the south. “We await business from you on all grades. “Very truly yours, “American Peanut Corporation.” To this the defendant, on November 18th, replied: “Philadelphia, Nov. 18, 1924. “American Peanut Corp., “Norfolk, Va. “ Gentlemen.- “Your letter of the 17th received relative to your invoice of October 21st. Now, as soon as we heard result of the arbitration we sent our check up to the Corn Exchange Bank here, who advised that you had — 765 — ordered the papers returned, or some other disposition made of them, and we, therefore, cannot understand your letter. Where is the B/L? “Yours very truly, “Birdsong and Company, Inc.” The plaintiff then wrote on November 19th: “November 19, 1924. “Messrs. Birdsong and Co., Inc., “Philadelphia, Pa. “Gentlemen: “We have yours of the 18th. “We had a wire from Mr. R. O. Wells stating that the car was rejected and advise disposition, and we wired R. O. Wells to have this car delivered to the Monarch Refrigerating Company if not accepted by Sudler, and the bill of lading was sent to R. 0. Wells. 'So, they have the bill of lading now, and the car was unloaded to save demurrage charges. So we think this will straighten this matter out alright, and you can send us check. “We hope this will be satisfactory, and also hope to have more nice business from you in the near future. Thinking that there might be some hitch about this, we are enclosing you letter addressed to the. Monarch Refrigerating Company asking them to deliver the ■car to you. “Very truly yours, “American Peanut Corporation.” The defendant continuing in its refusal to make payment, a correspondence between the parties followed which was without result. It is insisted by learned counsel for the defendant that the agreement between the parties was an ■executory contract of sale and that this action for the purchase money cannot be maintained, upon the ground — 766 — that the title and ownership of the goods had not passed to the buyer, and, therefore, the remedy of the seller was confined to an action for damages. It is a recognized general rule of the law of sales that when the contract is executory as is the fact in the instant case, and the buyer repudiates the contract and' in consequence refuses to accept the goods, whether before or after attempted delivery, at a time when according to, the intention gathered from the contract between the parties the title and right to possession had not passed to the buyer — -then the seller is relegated to his action for damages and cannot sue for and recover the full purchase price. The seller is not permitted to force the title or ownership of the goods upon the buyer, contrary to the terms of the contract, so as to enable him to sue for the purchase money, although the buyer has repudiated the contract and refuses to abide by its terms and purchase the goods. The true doctrine is that the intention of the parties as to when the title passes must govern. This intention may appear from the express terms of a formal contract, or may be gathered from all the circumstances constituting the contract or surrounding its completion. Ellis v. Hubard, 123 Va. 481, 96 S. E. 754; Montauk Company v. Daigger, 141 Va. 686, 126 S. E. 681. In the instant case there are three points in the contract and dealings of the parties, dwelt upon by counsel, having material bearing upon this question of intention of the parties. The goods were shipped f. o. b. at Norfolk, the place of delivery to the carrier; the seller drew a draft upon the buyer with bill of lading attached; inspection was allowed at point of destination. A sale f. o. b. cars means that the subject of the sale is to be placed on the cars for shipment without — 767 — any expense or act on the part of the buyer* and that as soon as so placed the title is to pass absolutely to the buyer and the property be wholly at his risk, in the absence of any circumstances indicating a retention of such control by the seller as security for purchase money, by preserving the right of stoppage in transitu. The fact that the bill of lading is to the order of "the seller, and attached to a draft on the buyer, is strong ■evidence that .the seller intended to reserve the title and that it does not pass to the buyer. The fact that the seller shipped to his own order, or that inspection was allowed the buyer, is not of itself determinative of the question of title; we must look for guidance to the question of intention. These general principles are accepted in Virginia. Geoghegan Sons & Co. v. Arbuckle Bros., 139 Va. 92, 123 S. E. 387, 36 A. L. R. 399; Rountree v. Graham, 144 Va. 145, 131 S. E. 193; Rosenbaum Hardware Co. v. Paxton, 124 Va. 346, 97 S. E. 784. We cannot agree, however, that these general rules of law, as argued for by the defendant, furnish a solution ■of the exact question presented in the instant case. Numerous eases show that their proper application under varying circumstances has proved exceedingly difficult. An executory contract may become completed by one party, so as to entitle him to require compliance by the other party, either by doing what he agreed to do, or by acquiescence of the parties. In the instant case, the effect of what was done by the parties when the shipment was completed and acceptance refused by Birdsong’s purchaser, was to agree that the title and ownership should pass to the buyer in the event the decision of the arbitrators, on the sole question remaining open, should be that the — 768 — peanuts came up to the requirements of the purchase. Good faith required that the parties should abide by the decision of the arbitrators. The buyer had not repudiated the contract, hence no right of action for damages accrued to the seller'. There was no abandonment of the contract by the seller. It is not necessary to decide whether in the event the bu^er had finally and absolutely refused to accept the peanuts at Chicago solely upon the ground that on inspection they did not come up to grade, and, therefore, declined to pay the purchase money, the seller could claim complete performance on his part and sue for the purchase money, and recover upon proof that the peanuts were of the grade contracted for; though it would be scarcely logical to hold that the buyer could reply that the title did not pass to him because he had not paid the purchase price. What the parties did was equivalent to an understanding that the buyer stood ready to pay the purchase money, if the peanuts came up to grade. He did not rescind the contract but kept it in force, so that if the decision of the arbitrators were against him, he was in a position of having finally accepted the goods as of the time of their tender by the carrier. There was considerable evidence on the trial, in addition to the outline of the case we have given above. Doubtless the facts and inferences from all the evidence, just above recited, were in the mind of the learned trial judge, and whether or not they necessarily follow from the evidence, we are unable to say that they are not supported by the evidence. The vital question in the case was whether the peanuts shipped were of the character and quality which the plaintiff was under obligation to ship. Upon the-finding by the arbitrators that the seller had complied — 769 — with this obligation, the trial court was justified in holding that complete substantial performance of the contract had been made by the seller, and he was entitled to the purchase money. Harrild v. Spokane School Dist., 112 Wash. 266, 192 Pac. 1, 19 A. L. R. 811, 815. It is further insisted on behalf of the defendant that the defendant evinced his readiness to pay the purchase price, when informed of the decision of the arbitrators, by sending a check to the bank on November 7th to take up the draft with the bill of lading attached, and as he was then told that the bill of lading had been surrendered to the railroad company in order that the goods might be stored with the Monarch Refrigerating Company, he could not get possession of the goods, and as the plaintiff had thus exercised control over them, ownership never passed to the buyer, and liability for the purchase money had not accrued. One difficulty the parties to the contract encountered in dealing with each other arose from the fact that the seller was in Norfolk, the buyer in Philadelphia, and the goods upon instruction were shipped to Sudler in Chicago as the buyer’s receiving agent. The trial court evidently concluded that when the arbitration was agreed upon, and no decision was rendered at once, the seller acted reasonably, when called upon by the Chicago railroad agent, in having the peanuts stored with the Monarch Refrigerating Company to the account of “whom it may concern” to await the result of the arbitration. This must have been known to Sudler in Chicago. We are unable to hold that the trial court erred in finding from the evidence that the seller acted reasonably under the circumstances, and that what was done effected no change in the status quo, but preserved the — 770 — rights of the parties, so that upon the decision of the arbitrators, the acceptance of the goods and liability for the amount of the invoice became final, leaving the storage company to turn over the goods accordingly. The railroad company and the storage company were in constructive possession of the goods for the purchaser should the arbitrators find for the seller. The withdrawal of the draft when not paid, and the placing of the bill of lading with the railroad company, was not, under the circumstances, unnatural, nor a breach of any of the terms of the contract of sale. The assignment of error based upon the exception to the conclusions and judgment of the trial court cannot by sustained. It is further assigned as error that the court erred in admitting in evidence the signed copy of the decision of the arbitrators. Several colloquies of considerable length occurred in the presence of the court between learned counsel for the two parties to this controversy, and considering the admissions made and agreements arrived at in the presence of the court, together with the evidence as to this document, we are of opinion that the court did not err in allowing it in evidence for consideration by the court. The conduct of both parties show that this arbitration was merely an arrangement for the final inspection of the goods, and is not to be judged by the technical rules applicable to a formal arbitration and award. A third assignment is based upon the refusal of the court to permit Mr. Birdsong to prove a loss claimed to have occurred from the failure of the Chicago purchaser from him to accept the goods at a price in excess of that he was to pay the American Peanut Corporation. The agreement on the part of the defendant to abide by the inspection of the arbitrators was a waiver of — 771 — tMs claim, so far as affected the plaintiff. In any event, the evidence became immaterial by the finding of the court for the plaintiff. Upon the whole case we are of opinion that the plaintiff in error, the defendant in the lower court, has not shown any error in the judgment justifying this court in disturbing the judgment, and it is therefore affirmed. Affirmed.