Ginocchio v. Kockos

PAGE, Circuit Judge. Defendants in error, plaintiffs, residing in California, sued plaintiffs in error, defendants, residing in the Northern district of Illinois and doing business as tbe United Eig & Date Company. Defendants moved for an instructed verdict, but before action thereon they moved to withdraw the motion. Both motions were denied, and the court, on plaintiffs’ motion, directed a verdict for $34,169.80. Plaintiffs defaulted in the performance of two contracts made On September 22 and October 14, 1919, for tbe sale and delivery to defendants of peanuts, and controversy over the damages for breach of those contracts caused the breach by defendants of the following contract, out of which this action arose: “No. 223. San Francisco, California. “January 12, 1920. “Koekos Bros., San Francisco, California, hereby agrees to sell, and United Fig & Date Company, Chicago, Ill., hereby agrees to buy: “Article: Chinese shelled peanuts (hand picked) f. a. q. s. *1919 crop’ — 38/40s. “Quantity (about): One hundred (100) tons of 2,000 pounds each. “Shipment: January/February/March; shipment from Orient. “By steamer or steamers, direct or in-direct to: “Price: Twelve dollars and twenty-ñve ($12.25) cents per 100 pounds, gross landed weights, f. o. b. ears Pacific Coast, duty paid. “Payment: Payment against sight draft with bifi of lading attached. “Subject to conditions on reverse side. “Remarks: Subject to inspection upon ' arrival.” Material conditions' on tbe reverse side are: “The goods covered by this contract are for buyer’s account and risk as soon as landed from the carrier, and order tendered, except in the instance of an f. o. b. price being denoted. * * * “If shipment is not accepted or disapproved within three full business days after arrival, contract shall be considered fully complied with, on seller’s part, and invoice, [194] if unpaid, becomes immediately due and payable. * * * “This contract shall be conclusively presumed to have been entered into in San Francisco.” The peanuts arrived, at the port of Seattle on April 1 or 2,1920, and the following telegrams passed between the parties, after inspection: Defendants to plaintiffs: “Chicago, Ill., April 9, 1920. “Our inspectors report on 100 tons Eastern Admiral satisfactory. We therefore accept tender provided you agree deduct from invoice $4,000 representing absolutely bona fide claim we have against you for loss suffered account your failure perform contract for 25 and 50 tons Japanese peanuts. Must have immediate wire.” Plaintiffs to defendants: “April 9, 1920. “Qualified acceptance imposing new terms refused. If you do not accept tender without imposing conditions will take steps to enforce contract.” Defendants to plaintiffs: “Chicago, Ill., April 10, 1920. “Telegram received. In view of your refusal to allow our just claim for damage arising out' of your nonperformance of contract covering 75 tons Japanese peanuts we hereby decline accept 100 tons Chinese thirty-eight forties as tendered by you.” Plaintiffs to defendants:' “April 10, 1920. “Refuse to accept your breach of contract. Insist upon performance. Will sue you for full purchase price goods being stored your expense.” Defendants acknowledged receipt of plaintiffs’ telegram of April 10th and said: “In reply to which we confirm our wire of April 10th, which sets forth our position in the matter, and hereby disclaim any liability in connection with these goods.” Plaintiffs'sent defendants the following: “April 10, 1920. “Sold to United Fig & Date Co., Chicago, Ill. “Net cash. Duplicate. [[Image here]] “Arr. ex S. S. Eastern Admiral at Seattle, Wash’n, marked 38x40 Keh Seattle. Net cdsh against documents. Weight adjustment to be made later.” Subsequent thereto there was no communication of any kind between the parties. The peanuts were warehoused under the fol-' lowing negotiable warehouse receipt: “Seattle, 4/19/20. “Received in store from Kockos Bros., San Francisco, Cal., the merchandise described below, which will be delivered upon return of this receipt properly indorsed and payment of all charges. Two thousand (2,000) bags shelled peanuts 38x40 (KEB) 9 slack hags wgts. 641#. W. H. Bd. 536 B/L 69. Weight or measure, 100 tons. Location, Whse No. 1-50. “Labor. “Storage rate, 50e. per ton unloading. 75e. per ton per month. 50c. per ton loading out. “Storage from 4/19/20. “Jordan Terminal, Inc., “By H. Van Kenven.” (No indorsement.) In our view of this ease, it will be necessary to consider only two questions: (1) Could there be any recovery under the declaration? (2) Was there error in taking the case from the jury? The declaration consists of certain of the common counts. The first two counts are for goods sold and delivered, the third a sort of consolidated eommqn counts for money lent, paid out, and expended, money had and received, interest, labor, services, and material, and the last count is on an account stated. We are of opinion that, on the record, there could clearly be no recovery under, any count, unless possibly on tbe one for goods sold and delivered. Plaintiffs’ urge is that, at most, there was only a variance, and that objection was not made in apt time. The question was raised at the close of plaintiffs’ case, and was in ample time. 'Consideration of the second question will answer the first question. Plaintiffs’ recovery was on the theory that their measure of damages was the contract price. That is the measure provided in section 3310, Deering’s Civil Code of California, 1923, if the title is vested in the buyer; but under section 3311 thereof, where the title has not passed, the measure is, roughly stated, the differauee between the value then and the contract price. The former represents [195] plaintiffs’ contention and the latter defendants’. One fact for plaintiffs to establish was that title had vested in defendants. Section 1502 of Deering’s California Code provides: “The title to a thing duly offered in performance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect” — thus making the question of the passing of title not only one of intent, but of an intent then signified. Ordinarily intent is a question of fact, and where something must be done to signify the intent to pass a title, unless there is a clear, unequivocal expression of such intent, the question of what the intention was and whether the intent was expressed or signified are questions of fact. If we find the signification of any intent in plaintiffs’ telegram of April 10th, supra, it is opposed to any theory of an expression of intent to pass title. It refuses to accept breach, insists on performance of contract and says “goods being stored” (not “for you” but) “at your expense.” If the warehouse receipt, taken by plaintiffs following the tender, is to be construed as a written instrument, it must be considered , as indicating an intention contrary to any intent to pass title, or a belief that title had passed. Considered as an act by plaintiffs, it is simply a fact to be considered in connection with other facts, some of which are that neither the warehouse, where the peanuts were stored, the kind of receipt taken, nor any other matter concerning it, was disclosed to defendants. Section 1503 of the California Code provides: “Custody of Thing Offered. The person offering a thing, other than money, by way of performance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire, until the creditor accepts it, or until he has given reasonable notice to the creditor that he will retain it no longer, and, if with reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person.” The record shows that plaintiffs had had long experience in handling peanuts on a large scale and knew that, during certain months in the Seattle climate, they could be safely left in an ordinary warehouse and during other months cold storage was necessary to prevent deterioration and loss. They were kept through two summers in ordinary storage and were lost through deterioration. It seems not necessary to discuss the fact that the warehouse receipt was issued under the laws of the state of Washington, the provisions of which are very explicit and clearly define the rights and responsibilities of the parties to the receipt. Nor is it necessary to discuss the evident intent that the bill of lading was to be one issued under the laws of Washington. It is not contended that any title passed under the provisions of the contract until the tender. Inasmuch as the court evidently denied defendants’ motion to withdraw its request for an instructed verdict, because it considered there was only a question of law, we do not deem it necessary to do more than say that it was so clearly the right of defendants to withdraw that motion that it was error not to permit it to be done. We are further of opinion that, if there was no delivery, there could be no recovery under the common counts, and that it was error in any event to instruct for plaintiffs, because there was a question for the jury, even if the declaration was good. The judgment is reversed and the cause remanded.