Ft. Dearborn Coal Co. v. Borderland Coal Sales Co.

DONAHUE, Circuit Judge

(after stating the facts as above). It is clear, from this evideneé introduced by the plaintiff, that there was no written contract and no written memorandum of any claimed verbal contract signed by the Borderland Company. So far as appears from this record, the Borderland Company would have been justified in the belief that the rejection and return of this written order ended the transaction. It necessarily follows that whatever shipments were made, were made in pursuance of this verbal contract after the written memorandum or order had been rejected. It is also clear that the coal was not accepted by the Borderland Company or the Chicago ByProducts Corporation, the consignee, but on the contrary was rejected by the consignee because of excess volatile matter as, under the written memorandum rejected by the Dearborn Company, the defendant and the By-Products Company had a right to do.

It is claimed, however, that the Borderland Company exercised acts of ownership over this coal by reselling it at a profit. This contention is not sustained by the evidence. The Borderland Company is a coal broker, and was known to be such by the plaintiff. The order to ship to the By-Products Company was a part of the original oral negotiations, and contemplated no delivery whatever to the Borderland Company, but on the contrary delivery by the Dear-born Company as consignor direct to the consumer, the By-Products Corporation, as consignee. It was all part and parcel of the same transaction. 'In this respect it differs materially from the cases' cited in the brief of counsel for plaintiff in error.

It is further claimed that, after 32 ears of this coal had been shipped upon this verbal contract, the Borderland Company, through Bonnell, assented to become the owner of these specific goods. This claim is based on the testimony of Pierce that the next day after he had rejected and returned the written memorandum of contract he told Bonnell over the telephone that 32 earloads of this coal were then in transit, and that Bonnell said “that he would handle it.” In view of the facts known to the plaintiff at the time, that the Borderland Company was not buying this coal for its own use, but was buying it as a means of filling its existing coal broker’s contract with the By-Products Company, that the final delivery and the first opportunity for'inspection would be on the tracks of the By-Products Company, and that the coal would continue in the possession of the carrier until final delivery, the statement by Bonnell that he would “handle it” cannot be construed as an assent by the Borderland Company, before delivery, to become the owner of the coal shipped under the verbal contract, even if the rejection and return of the written order and Jailure of defendant to modify and return the same would not have the effect of canceling the verbal order and ending the transaction. However, whether or not this promise to “handle it” amounts to an acceptance under section 8384 (3), there was not, under the recited circumstances, the “actual receipt” which section 8384 (1) requires in addition to acceptance.

Judgment affirmed.