Street v. Werthan Bag & Burlap Co.

BECKER, J. On June 30, 1913, the defendant company, located at St. Louis, Missouri, under its trade name, St. Louis Bag and Burlap Company, sold to the — 343 — plaintiffs, located at Houston, Harris County, Texas, 300 bales of bagging known as sugar cloth, the contract of sale being evidenced by correspondence exchanged between the said parties. Plaintiff sued defendant for damages in the sum of $1215, for the alleged failure to deliver 250 of 300 bales purchased. It is alleged that plaintiffs, upon the breach of the contract by defendant, were forced to and did purchase 250 bales of bagging in lieu of that contracted to be delivered by the defendant, but which the defendant failed to deliver. The answer was a general denial. The case was tried before the court without the intervention of a jury. From a judgment in favor of plaintiffs and against the defendant, in the sum of $1259, being the amount sued for with interest, the defendant brings this appeal. Tlie written contract relied upon by plaintiffs was evidenced by correspondence. We will set out that portion of the correspondence which we consider material. Plaintiffs, on June 9, 1913, wrote the defendant company: “Please quote us in lots of 500 to 1000 bales, f. o. b. Houston and Gralveston. You understand that we want this bagging to be 44 inches to 46 inches in width and in strips 6 yards long, packed 50 pieces to the bale.” Defendant answered on the 11th of June, 1913: “We are pleased to advise you that we can quote you this bagging in 6 yards strips, packing 50 pieces to a bale — bagging to run from 42 inches to 46 inches wide, at 8% cents per yard, freight paid to Houston, allowing you 3 per cent discount for cash. Please advise by wire if you can use same.” On June 30th, plaintiffs wired defendant: “Your letter 11th. Name lowest price 1000 bales, July, August shipment on our order.” Defendant ansAvered by wire the same day: ‘ ‘ Our price 11th lowest on 300 bales shipment July and August, subject to wire acceptance. ’ ’ Plaintiffs replied on the same day by wire: ‘ ‘ Offer 8% cents, less 3 per cent on 300 bales mentioned. Wire acceptance.” On the same day the defendant replied by wire: “Wire received; our price 8% cents, less 3 per cent best on cloth'; Avire acceptance.” — 344 — Plaintiffs by wire replied on the same day: “Offer accepted.” Plaintiffs confirmed this telegram of acceptance by letter; and the defendant in turn sent plaintiffs the following letter of confirmation accepting the order: “June 30, 19,13. Street & Co. We beg to acknowledge receipt of your wire of even date and have entered your order for 300 bales of bagging cloth in 6 yard strips to be packed 50 pieces to the bale, cloth to run from 42 inches to 46 inches wide at 8% cents per yard, freight paid to Houston, allowing you 3 per cent, discount for cash against document. Cloth to be shipped during July and August.....” Considerable correspondence between the parties was introduced which showed that the plaintiffs were continually urging the defendant to hurry up the order and ship the bagging purchased as quickly as possible. It further appears that the defendant, on July 26th, notified the' plaintiffs that it had shipped a car of bagging, giving the car number and the route. However, on August 4th, the defendant, by letter, wrote the plaintiffs that when they, “started to invoice your car we found that our party shipped us 3 yard strips instead of 6. We trust that you can use these this length, otherwise it will cause considerable delay. This car has been on the road now for ten days.” Plaintiffs immediately wired, upon receipt of the letter: “Cannot use 3 yard strips. Suggest you take up with H. W. G-arrow & Company, Houston, to whom you might sell as patches.” The defendant replied by letter of August 5th, acknowledging receipt of the wire, and' advising that it had diverted the car and stated that, it would, “be able to let you have a car in the next few days from what information we have.” On August 19, 1913, the defendant did ship one car containing 15,000 yards of the bagging to the defendant, via. the St-. Louis, Iron Mountain aiid Southern Railroad, which car reached Houston, Texas, on August 27th. On August 21st, one 'of the banks in Houston presented a draft with bill-of-lading for said carload of bagging attached, the draft being drawn by the — 345 — defendant on the plaintiffs. Plaintiffs did not pay the draft at once, and gave'as their reason that they did not consider, from the terms of the contract, that the goods were to he paid for until they were delivered. They, however, wired defendant on August 21, 1913, to direct the bank to hold the draft until the delivery of the goods. Defendant replied by telegram on the same day: “Wire received. Contract calls less 3 per cent for cash. Draft should be paid on presentation.” Plaintiffs replied by wire on the same day; “Telegram received. Must insist that yon wire bank to hold draft for arrival of goods, as we understand shipment has not yet left St. Louis, and we do not intend to pay in advance for the goods.” To this defendant replied: “Wire received; contract calls for 3 per cent less for cash; if' you are willing to waive discount, will have bank hold draft for arrival. If car has not left St. Louis, fault of the railroad, not ours; same is not being held.” The plaintiffs answered by wire: “Answering night letter, will waive the 3 per cent.” Defendant wrote a letter to plaintiffs on August 22nd, as follows: “Acknowledging receipt of your wire of even date we have had our bank to advise their correspondent to hold your draft and draft will be with 3 per cent added. We have had the Iron Mountain on the phone and find you are correct, the car has not left St. Louis. Will you kindly advise us where you got this information? We will send you the • correspondence from the Iron Mountain showing that the blame lays entirely with' them and not with us. As it was our intention to ship these goods over the M. K. & T., you are the ones to blame, as you requested us to route the cars Iron Mountain.” 1 The ear on arrival was inspected and paid for. There was testimony to the effect that the contents of the car did not in all respects conform to the contract, namely, that the cloth itself was not strictly up to the sample originally submitted, and the bales were not of the size agreed upon, namely, the contract called for 300 yards to the bale while the bales in the car — 346 — shipped were but half the size stipulated, containing 150 yards to the bale; but plaintiffs, on the whole, were satisfied with the car. No further bagging was shipped by the defendant to the plaintiffs, and on September 2, 1913, plaintiffs wired defendant: “Shall we buy for your account balance bagging due us. Answer.” And on September 4th wired: “You having shipped only 50 bales of our purchase of 300, shipment July — August, we have had to buy for your account balance, and we propose to hold you for the difference in price for failure in complying with your contract.” The defendant answered by wire on the same day: “Wire received; see letter third; you refused pay on draft as per contract; we couldn’t afford to ship until we know that you would acT cept the goods; we will not be responsible for any purchase you may make; if you want us to ship you any more cloth, wire.” Defendant confirmed this wire by a letter on the same day as follows: “. . . We will not be responsible for any gunny you may buy for our account as we have given you no authority to do so. The very first shipment that we made you you. turned down our draft. Still, as we did not want to have any hard feelings, we were willing to go ahead and fill the contract for you. Of course if you are not willing to let us fill the contract, well and good. If you are, we will do so, but may be a little bit delayed, but we think you will be better off to be delayed than to try to force this matter, as, after refusing the car that we did ship you we do not think you have any kick against us for not shipping any more, until we found out how we were going to come out on this.” Plaintiffs, on September 4th, by letter, notified the defendant that they had bought the balance of the gunny sack bagging, namely, that portion which defendant had failed to • ship under the contract which amounted to 75,000 yards; that they had bought the bagging in two lots; one lot of 200 bales, or 60,000 yards, they had bought at 9-7/8 cents per yard, F. O. B., Houston; the other lot 50 bales, or 15,000 yards, at 9-3/4 cents, Galveston, which is equiva — 347 — lent to 9-85/100 cents Houston, and in the letter plaintiffs enclosed the bill for the difference between the contract price and the price which plaintiffs had thus, paid, which aggregated $1215. The last day for fulfilling the contract was August 31, 1913 and it fell on a Sunday; and it was admitted September 1st was Labor Day, a holiday; on September 2nd the plaintiffs took an option for 200 bales of bagging from a Houston concern and exercised this option on the 4th of September and bought said amount, and the balance, namely 50 bales, plaintiffs purchased on September 4th at Galveston. A witness for plaintiffs testified that the price on the first four days of September of that year on this character of cloth for bagging was the same, and that the plaintiffs, before purchasing the bagging for the account of the defendant, obtained quotations upon the same from Graves & Company in Houston, and O. F. Schwille & Company in Galveston, each of which concerns was a large dealer in that particular commodity, and that the prices paid wore the reasonable value of the goods at the time and place. Appellant’s chief assignment of error is that the court erred in not sustaining its demurrer “to the evidence, and that on the ground that the plaintiffs’ damages, if any, should have been based qn the market value at St. Louis and not at Houston, because delivery was to take place at St. Louis and not at Houston. The ingenious' argument is made by learned .counsel for the appellant that there is a clear cut distinction and difference between the terms, “F. O. B., Houston” and “freight paid to Houston,” that “F. O. B. Houston” would mean the goods would have to be delivered by the seller of the merchandise in question at Houston, F. O. B., and the carrier in such event would be the agent of the seller for delivery of the goods at such point, wheréas the term, “freight paid to Houston,” means nothing more or less than indicating the destination, and that appellant would pay the charges, so that when it delivered to the carrier at St. Louis, freight charges prepaid, .the goods ipso facto became the prop — 348 — erty of respondents and the carrier thereby became the agent of respondents for delivery to them at Houston. ” We have searched the adjudicated cases and text books to find a precedent for such a distinction between these terms as is argued exists, but without avail. We are of the opinion that the term, “F. O. B., Houston,” and the term, “freight paid to Houston,” for the purposes and under the facts in this case are synonymous. It will be noted that in the letter of June 9, 1913, plaintiffs wrote the defendants: “Please quote us on lots of 500 and 1000 bales F. O. B., Houston and Galveston,” and that by letter of June 11, 1913, the defendant replied that it was pleased to advise that it could, “quote this bagging at 8-1/2 cents per yard, freight paid to Houston, allowing you 3 per cent discount for cash,” which offer was finally accepted by the plaintiffs and the acceptance of the order confirmed by defendant by its letter of June 30, 1913, in which the defendant again states the price to be 8-1/2 cents per yard, “freight paid to Houston, allowing you 3 per cent discount for cash against document; cloth to be shipped during July and August.” We have no doubt but that, “F. O. B., Houston” and “freight paid to Houston,” were considered by both parties as synonymous terms. The appellant, however, contends that it has adduced sufficient proof to show that the only car of bagging which it shipped the respondents was routed over the St. Louis, Iron Mountain and Southern Railroad at the request of the respondents. It is true the record contains defendant’s letter directed to plaintiffs, dated August 22, 1913, which contains the sentence: “As it was our intention to ship these goods over the M. K. & T., you are the ones to blame as you requested us to route the cars Iron Mountain.” It is argued that this letter is sufficient to bring the case within the rule that, “if the purchaser selects the carrier by which the shipment is to be made to the purchaser, the carrier is deemed the purchaser’s agent to receive and transport the goods.” .In support of this contention we are re — 349 — ferred to the cases of Gill & Fisher v. Comm. Co., 84 Mo. App. 456; Scharff v. Meyer, 133 Mo. 428, 34 S. W. 858; Griffith v. K. C. Co., 46 Mo. App. 539 and Meyer Bros. v. McMahan, 50 Mo. App. 18. The Gill & Fisher case we find not in point for there the contract specifically provided, “F. O. B. Q. cars Kansas City . . . Please load large cars and 10 per cent, over marked capacity.” The seller lived in Kansas City and the commodity was being shipped to Baltimore, Maryland, as its destination. The Chicago, Burlington & Quincy was specifically designated in the contract as the carrier and the consignee was to pay the freight from Kansas City to destination. In the Scharff case the Meyer Company, defendant therein, sugar merchants in’ the city of New Orleans, had sold fourteen different lots of sugar to as many different purchasers in the city of St. Louis. All of the sugar was shipped on the same boat from the Cora Plantation, Louisiana. Scharff, et al., the plaintiffs, creditors of Meyer Company, brought an action by attachment and seized all of the sugar in question as the property of the defendant, whereupon the Union National Bank of New Orleans interpleaded claiming the fund derived from the sale of the sugar attached,' by reason of having purchased fourteen drafts of the defendant company, one draft covering each of the fourteen different lots of sugar, to each of which drafts was attached the corresponding bill-of-lading for such lot of sugar. Each of the bills-of-lading, it appears, was made out in the name of the consignee. Of these fourteen lots hut four of them designated the place of delivery as St. Louis and as to them the court (l. c. 448) says: “Under the contracts with respect to lots numbered 1, 3, 2 and 4, the first two lQts were to be delivered on the levee in St. Louis and the last two in said city, nq other place being named. Notwithstanding the bills-of-lading for these sugars were also made in favor of the respective consignees, the contracts not only show that they were to be delivered in St. Louis, but also show that they were sold at about one cent on — 350 — the pound in advance of other sugar shipped at the same time in contracts to he delivered on the vessel, which tended to show,- aside from other facts and circumstances in the case, that the consignors retained title thereto and that they were shipped at ■ their risk. If so, while in transit, the carrier was their agent. [Benjamin on Sales (Kerr’s Ed.), sec. 925; Dunlop v. Lambert, 6 Cl. & F. 600.] This, however, is a matter depending largely upon the intention of the consignors and a question for the consideration of the court or a jury.” A careful reading of the Griffith case discloses that the point in question is not therein discussed, whilst the Meyer Bros, case is not in point in that, there is no provision that the seller was to pay the freight to destination. In the instant case not only does the contract specifically provide that the freight to Houston, the destination, shall he paid by the consignor, but the contract is entirely silent as to the selection of any carrier by which the shipment .is to he made. The fact that the one car of bagging which was actually shipped by the defendant to the plaintiffs, was shipped over the Iron Mountain, even though the record disclosed that the' purchaser had directed shipment by that route, hut to which we do not agree, would have no bearing under the facts in this case upon the unshipped portion of the order. Under the contract it is plain that the carrier was not designated therein and the purchaser had no authority to compel the seller to ship by any route which he, the purchaser, might designate. Williston.on Sales, sec. 280, with reference to the question states (page 106): “Whether by the terms of the contract the seller is authorized to make a final appropriation of the goods to the buyer by delivering them to the carrier at the point of shipment, or whether the duty of the seller is to deliver the goods at their destination, the risk of transportation being upon him, is a -question of fact. If the contract specifies that one party or the other is to pay. the freight, this almost — 351 — certainly indicates the intention of the parties in regard to the matter. If the buyer is to pay the freight, it is a reasonable supposition that he does so because the goods become his at the point of shipment and the carrier is his agent in transporting them. On the other hand, if the seller is to pay the freight, the inference is equally strong that the duty of the seller is to have the goods transported to their ultimate destination and that the carrier is his agent in transporting the goods. Accordingly, if the seller is to pay freight, the presumption is that the property does not pass until the goods have reached their destination.” In 35 Cyc., 174, we find the following: “Ordinarily, when goods are to be shipped by the seller and at his expense, to the place of business of the buyer, such place in the place of delivery.” [See, also, Hunter v. Kramer, 71 Kan. 473; Devine v. Edwards, 101 Ill. 141; Murray v. Mfg. Co., 11 N. Y. Supp. 734; Suit v. Woodhall, 113 Mass. l. c. 394; McLaughlin v. Marston, 78 Wis. l. c. 677; State v. Swift & Co., 198 S. W. (Mo. App.) 457, l. c. 458; Taussig v. So. Mill & Land Co., 124 Mo. App. 209, l. c. 216, 101 S. W. 602, and cases therein cited.] There are other facts in the case which tend to show that the point of delivery was Houston, namely, the fact, that the contract read: “Freight paid to Houston, allowing you 3 per cent discount for cash against document.” The intention of the parties thereby being shown to be that the bills-of-lading were not to be delivered until the drafts to which they were attached should have been paid. [See Howard v. Haas, 131 Mo. App. 499, l. c. 501, 109 S. W. 1076; Roaring Fork Potato Growers v. Produce Co., 193 Mo. App. 652, 187 S. W. 617.] In view of the written contract, together with the other facts in the ease, we must rule this assignment of error against the appellant and hold that the court did not err in overruling defendant’s demurrer to the evidence. The evidence shows that the delivery was to take place at Houston and not at St. Louis, and there — 352 — fore the market value at Houston and not at St. Louis was the basis of plaintiffs’ damages. As to the point made by the appellant that the respondents failed to establish, by substantial testimony, the market value of the bagging purchased by them for the account of the appellant at Houston, and that the purchases were made on September 4th at Houston and G-alveston instead of on August 31st, the last day for the fulfilment of the contract, we hold there is ample testimony to support the finding of the trial court, that plaintiffs had complied with the established rule with reference to such purchases. We have examined the other, assignments of error raised by the appellant but find them without merit and the judgment being for the right party it is accordingly affirmed. Reynolds, P. J., and Allen, J., concur.