Townes v. Edward Holland & Co.

Cook, P. J., delivered the opinioii' of the court. Townes & Sturdivant, appellants, sold to Edward Holland & Co., appellees, who were cotton buyers at Green-ville, Miss., one hundred and eighty-four bales of cotton lying on appellant’s gin platform at Glendora, in Tallahatchie county, Miss. The sale was made in the afternoon of September 21,1916, between two and three o ’clock. At eleven o’clock that night one hundred and twenty-seven bales of said cotton were destroyed by fire, and afterwards the fifty-seven bales not destroyed were delivered to appellees and paid for by them. Appellees refused to pay for the cotton destroyed, and thereupon appellants brought this suit to recover the price of the destroyed bales. Appellees- pleaded the general issue; and at the conclusion of the evidence the court, at their request, gave a peremptory instruction to the jury to re^ turn their verdict for the appellees. The disputed point in issue was the delivery of the cotton. The court was evidently of the opinion that the evidence, taken as a whole, shows that the sale was in [547] complete. The cotton was on the gin platform of appellants lying between the track of the Yazoo & Mississippi Yalley Railroad Company on one side and the Southern Railroad Company on the other side. The cotton was numbered and marked, and it had been sampled and graded by appellees’ agent, and he, together with other bidders, submitted sealed bids, all of which were rejected by appellants. Appellee’s agent .on the ground called up appellees on the telephone and reported the facts to appellees’ manager at Greenville, giving the number of bales, the grade, staple, and the price-he had offered, which had been declined. The manager Mr. Fordham, then had a conversation over the phone with B. E. Townes, a member of appellants’ firm. This conversation finally resulted in a sale of one hundred and eighty-three bales of the cotton at twenty-five cents per pound and one bale at twenty-two and one-half cents per pound. Both Frodham and Townes testified about the ■ substance of this conversation, and they only differed about the method of shipment and payment. Townes said the sale was then and there completed, and that Fordham instructed him to ship the cotton to the Itta Bena Compress for appellees’ account and to draw on appellees a three days’ sight draft for the price. Fordham’s version of the conversation was that he instructed Townes to ship the cotton, and to draw on appellees at Greenville a three days’ sight draft for the price, with bill of lading attached. Townes said that, if anything was said about attaching the bill of lading, he did not hear it, but he further stated that he intended to draw with bill of lading attached, because, he said, no cotton buyer would pay a straight draft without bill of lading attached. It will be observed that there was no substantial difference between the witnesses as to the facts. Mr. Townes testified that on the day after the fire appellees phoned him to confirm the sale of the cotton, [548] and in response to this request he wrote the following letter, dating it on the day of the sale- and fire, viz.: “Glendora, Miss., Sept. 21st, 1916. “Edward Holland & Co., Greenville, Miss. — Gentlemen: This is to certify that we confirm sale made over phone to-day for one hundred and eighty-three Mies of cotton,at twenty-five cents per pound and one bale of cotton sold to your buyer, Mr. Dave Humphrey, at twenty-•two and one-half cents per pound. “Yours very truly, Townes & Sturdivant." The record shows that appellees, on the day after the fire, wrote this letter to the Standard Marine Insurance Company: “Sept. 22, ’16. “J. W. Roberts, Mgr.. Standard Marine Ins. Co., 63 Beaver St., New York, N. Y.: Just heard one hundred twenty-four bales burned. Sixty bales badly damaged, consisting of purchase one hundred eighty-four bought yesterday afternoon from Sturdivant & Townes at Glendora, Mississippi. How shall we act in the matter? Edward Holland & Co." On the same day, this letter was written to Townes & Sturdivant, viz.: “Greenville, Miss., Sept. 22, ’16. “Messrs. Sturdivant & Townes, Glendora, Mississippi • — Dear Sirs: As we will have the Standard Marine Co. ’s representative at Glendora Monday, we will ask you to send us in an invoice made up from your gin weights of the one hundred and eighty-four bales burned. Kindly do this at once and give us all particulars about the fire. Thanking you for your trouble. .“Yours truly, Edw. Holland & Co." ' Inasmuch as the trial court instructed the jury peremptorily to find for the defendant, the whole record and all of the evidence offered and excluded, as well as the evidence sought by the plaintiff, comes under review. The narrow point, the single point, presented by this appeal, is the question of delivery. This court in More [549] land v. Cotton Co., 94 Miss. 572, 48 So. 187, propounded this question and gave the answer thereto, viz.: “Might I not agree with a purchaser to take my chattels at an agreed price, with the express understanding that delivery was then completed, hut further agree to prepare them for shipment and wait for payment until the bill of lading is issued? To propound this query is to answer it.” We have examined this record in its entirety, and in the light o'f the principles announced in Moreland v. Cotton Co., supra, it seems clear that this was a case for the determination of a jury. The jury might have reasonably concluded that the sale of the cotton was complete. ‘ ‘ The fundamental question here is as to the intention of the parties, and this intention is, of course, to be gathered from the course of dealing between them, the acts performed, and the languáge uttered • at the time the transaction is had.” It will he noted that one of the judges in the More-land Case' thought that a peremptory instruction should have been given for the plaintiff. This, case, if not “on all fours” with the Moreland Case, is certainly strikingly similar, and is controlled by the principles announced in that case. The jury would have been warranted in believing that the sale was completed; that the cotton had been delivered, and was, at the time of the fire, the property of appellees, and to execute the contract the payment of the agreed price was the only thing left undone. The letters of appellees to the insurance company were pertinent, as tending to show their understanding of the transaction, and were in accord with the contention of plaintiffs. It 'is manifest that Townes & Sturdivant thought they had sold the cotton, and a jury would be warranted in believing that the' defendants were of opinion that they owned the cotton, else why should they have corresponded with the insurance company? The trial [550] judg'e erred in excluding evidence which might have influenced the jury in arriving at a verdict. We do not think that a custom to draw with the bill of lading attached necessarily carries with it the idea that a sale is not complete until this formality is complied with. The question is at last, in all cases wherein contracts of sale are involved: What was the understanding of,the parties to the transaction? Viewing the contract in. the present case from the standpoint of appellants, we are unwilling to say that the sale was not complete because the cotton had not been delivered to the carrier. It seems reasonable to say, from all the evidence admitted and excluded, that the trade was closed, and the title to the eotton was vested in the buyer. The sale was executed, and the only thing left undone was the payment of the agreed price. In the numerous cases reported in the books the decisions rest upon the facts of each case. We think the facts in this case are very near akin to the facts in Moreland v. Cotton Co., supra, and the court should have' submitted the facts to the jury to determine the intention of the parties. This court, in Moreland v. Cotton Co., said: “So that we can find no justification for the peremptory instruction in defendant’s favor except the custom shown to exist between the parties as to payment and placing the cotton in the possession of the railroad company for transportation. We think this is a delicately balanced question. ’ ’ So say we in this ease. Reversed and remanded.