Bonds v. Thomas J. Lipton Co. , 85 Miss. 209 ( 1904 )

Truly, J.,

delivered the opinion of the court.

On March 4, 1903, J. O. Hood & Oo., a partnership composed of J. C. Hood and C. A. Bonds, doing a brokerage business at Jackson, Miss., closed a contract of purchase with the Thos. J. Lipton Company, meat dealers of Chicago, 111., for 50,000 pounds of bacon ribs, at a price named. The negotiations were conducted and the contract concluded by telegraphic communications, which were sent in a cipher in use by the parties. The final telegrams, consummating the contract of purchase, were as follows: One from Hood & Oo. to appellee in these words: “Book us subject to your confirmation 50,000 pounds bacon ribs, fiorty to forty-five average, at 11-10 buyer’s, option April.” On the same day the Lipton Company wired confirmation of the sale as follows: “Booked 50,000 lbs. bacon ribs 40 to 45 average 11 — 10 buyer’s option April.” During the month of April, J. O. Hood & Oo. failing to transmit shipping orders to appellee, several communications, both by letter and telegram, were sent by appellee to Hood & Co., requesting directions as to shipment and delivery. These were not responded to. After the expiration of the month of April, appellee wrote J. C. Hood & Co. that, as they had failed to receive any shipping instructions in reference to the 50,000 pounds of bacon ribs sold them, they had been, in accordance with established custom, placed in storage for the account of Hood & Co., and that the usual storage charge of 10 cents a month per 100 pounds would be charged. During the month of May the firm of J. C. Hood & Oo. dissolved, O. A. Bonds purchasing the interest,of J. O. Hood. From the date of this dissolution a great deal of correspondence was carried on between the individual members of the late firm of J. C. Hood & Go. and the appellee in reference to the meat purchased and then held in storage by the Lipton Company for Hood & Go. No definite conclusion was arrived at, and, the matter being unadjusted, on the 22d of June the Lipton Company, in open market, in the city of Chicago, sold the 50,000 pounds of meat which had been stored for Hood & Co. for their account, and credited the proceeds. From the date of the purchase of the meat, on March 4th, until the day of the sale, on June 22d, the market price of this class of meat had steadily fallen, so that, after crediting the proceeds of the meat on June 22d, there remained due the Lipton Company the sum of $550. For this amount appellee filed its suit against J. C. Hood & Co. After the institution of suit, J. C. Hood individually paid $250 to appellee in settlement of the amount due by him on the contract. The suit proceeded against C. A. Bonds. At the conclusion of testimony the court gave a peremptory instruction in favor of appellee for $250. From this judgment C. A. Bonds appeals, and assigns four grounds of error, which will be discussed in the order of presentation.

It is said the contract is void under the statute of frauds, and that the cipher telegrams, interpreted as above shown, do not sufficiently show a sale. But the inescapable reply to this contention is that the letters which passed between appellee and J. O. Hood & Go. and- C. A. Bonds distinctly recognize the existence of a contract, and set forth with absolute certainty the details of the transaction. See letter of appellant “respecting two cars of ribs purchased by Mr. Hood” and asking to be kept advised. In addition to this, J. O. Hood, the member of the firm by whom the contract was made, admitted the contract and acknowledged the correctness of the cipher telegrams as transcribed; and this undisputed testimony, when considered in connection with the letters, clearly establishes the consummation of the contract.

It is next said that the appellee is not entitled to recover because the Lipton Company never made an effort to deliver the meat, and it is contended that it was the duty of the appellee to have the meat actually transported to the city of Jackson, and there tendered Hood & Go. . The reply to this is that the meaning of the technical phrase “buyer’s option April” is that it is for the buyer to give shipping orders if, and when, he desires the meat' to be actually delivered. This meaning is made evident by the testimony of Mr. Hood and by the depositions of the employes of the appellee, and is nowhere disputed in this record. Hnder the terms of the existing contract, therefore, the appellee was not bound to make any actual delivery or tender of the meat unless previous shipping orders had been given it by the purchasers. This fact is clearly recognized in the letters from C. A. Bonds to the appellee, and in some of those letters written subsequent to the last of April, the date when counsel for appellant contends the delivery ought actually to have been made, Mr. Bonds impliedly admits that the meat is being held for the account of Hood & Co., and acquiesces in that arrangement, inquiring of the Lipton Company what their “carrying charge” amounted to — meaning, of course, the cost of having the meat kept in storage, in the hope of an advance in price, so that the loss which he then recobnized as inevitable, and his liability for which he did not deny, might be reduced to a minimum. Note appellant’s letter of May 30th, in which, after stating when he first acquired knowledge of the purchase of the meat and his desire to arrange the matter, he proceeds: “It looks as if Hood & Co. are going to have a loss. In order to get out of the matter, what is your carrying charge ? It is thought we will have higher meat, and can possibly get out of it by carrying it thirty or sixty days.” Hnder the facts of this record, and the terms of the contract as construed by Hood and the appellee, and not denied by the appellant, and the course of dealing between the parties, we do not think it was incumbent upon the appellee to have had the meat actually transported to the city of Jackson and tendered to a customer who had already evidenced his intention of not receiving it. The action of appellee in this regard was for the best interests of all concerned. To have brought the meat to Jackson would simply have been to have added the transportation charges to the loss of Hood & Oo., and would have placed this large quantity of meat on a smaller market for a forced sale, when, as shown by the correspondence of Hood & Co., they had been unable to make any sale of it. It is in testimony, and undenied, that meat in such quantities could be disposed of to a better advantage in Chicago upon the open market than at any smaller place. In the absence of contradiction, we must take this statement as true.

■ It is' next argued that appellee is not entitled to recover because the reselling of the meat, under the circumstances of this cáse, was a rescission of the contract, and it is urged that, in truth, there never had Been any actual sale of any specific lot of meat to Hood & Co.; that there had Been no segregation of this quantity of this particular class of meat By the appellee. "But here, again, the appellant is met by the uncontradioted statement of the agents and employes of the Lipton Company, who testified that there was in-fact an actual segregation and setting apart of the specific quantity of the particular class of meat sold to Hood & Co., and that from the date of the purchase, oh March 4th, to the date of the sale, June 22d, the Lipton Company had in its warehouse never less than the identical amount which Hood & Co. had purchased, and, when the supply of this special class of meat was reduced to the quantity which Hood & Co. had purchased, appellee’s offering list showed no offer to sell any meat of that special kind. It is suggested by appellant: Suppose the meat had been destroyed by fire or other casualty while in the warehouse in Chicago after March 4th, would the court have held the loss to have been entailed upon Hood & Co. ? Had the' loss occurred prior to the time when the buyer’s option 'expired, undoubtedly not, for the reason that the very term “buyer’s option April” permits the buyer to allow his meat to remain without risk or cost to him until the date of the expiration of the option given by the terms of the contract. If the loss had been after the meat was actually placed in storage for the benefit of Hood & Co., then the question of loss of the meat upon destruction by casualty would depend on the terms and condition of the storage, and cannot be answered with any degree of certainty from the facts detailed in this record. But it is said that the reselling of the meat under the circumstances shown by this record was a rescission of the contract, because the meat actually sold on the market by the Lipton Company was not what is denominated “smoked meat,” whereas the meat contracted for by Hood & Co. was of that class. But this objection vanishes in the light of the testimony, which shows that smoking is simply a process which the meat is subjected to immediately prior to shipment, and, inasmuch as the buyer failed to give any shipping directions, it was never necessary to put the additional expense entailed by the smoking process upon the buyer, and the record shows that this is credited on the statement of account between the parties.

Lastly, it is urged that the copies of the telegrams offered in evidence were incompetent, and that no proper proof of the contract was made.' We have shown in our consideration of the first objection that the proof of contract does not depend upon the copies of the telegrams alone, but is also shown by the let.ters, the genuineness of which was not denied. We find it unnecessary to enter upon any extended discussion of the question as to the admissibility as evidence of copies of telegrams, for the reason that, even if in the instant case they were inadmissible, it could avail the appellant nothing, because, with them out of the record, the proof of the contract, in all of its terms and conditions, is specifically made, and, more than that, acknowledged by the member of the firm who made the contract, and who has not only acknowledged his liability for a proportionate part of the loss, but has promptly acquitted himself thereof by payment in full.

None of the assignments of error are tenable. The appellant has no cause to complain at the amount of the judgment. It is, in truth, something less than was warranted by the proof.

'Affirmed.