E. T. Jennette & Co. v. City Hay & Grain Co.

AlleN, J.

The contract between the plaintiffs and the defendant is in writing, and consists of the telegram of 26 March, 1909, sent by the plaintiffs, and the reply of the defendant of 27 March, 1909, and being in writing, it was for the court to determine its meaning. We think his Honor held correctly, as be charged the jury that “The contract between the parties was that the defendant would sell to the plaintiff 400 sacks of No. 2 cracked corn, delivered in Washington, at $1.50 per sack, provided that the same was ordered out by the plaintiffs within thirty days, and plaintiff was not entitled to call for shipment of any part of the 400 "sacks after the thirty days had expired.”

This seems also to have been the understanding of the plaintiffs at the time this action was commenced, as they wrote the defendant on 3 May, 1909: “We are reasonable, and do not expect anything unreasonable. Now, if you will refer to the purchase of this goods, you will find that we ordered some of this shipment out at once; we could have put the entire shipment off until thirty days. It looks as this should give us consideration.”

They made no claim then that they had the right under the contract to order out any of the corn after thirty days.

This being the correct construction of the contract, there can be no recovery for refusal to ship the 250 sacks ordered by the plaintiffs after the expiration of thirty days.

Instead of the prayer requested by the plaintiffs, in reference to the 45 sacks, his Honor charged the jury: “As to the 45 sacks seized and condemned, the court charges you that after this corn was shipped -it became the property of the plaintiffs, and when it was seized and condemned in the hands of one of their customers, it was their duty .to release the same, and the measure of damages in such case was the difference in value between No. 2 cracked corn, weighing 100 pounds per sack, at the time and place of delivery, and the corn which was actually delivered, together with such reasonable costs and charges as plaintiffs incurred on account of the seizure and rehandling of the corn in question. After this corn was deliyered to the plaintiffs and seized by the State, it was the duty of the plaintiffs to do the best they could with it and to pay the cost of forfeiture and other necessary expenses incurred; but it is admitted in this ease that defendant paid the costs of the forfeiture, and the plaintiffs are therefore not entitled to recover anything on that account, but only the difference in the value between this corn and No. 2 cracked corn, as above stated, together with any other expenses actually incurred by them in its handling.”

In view of tbe evidence of tbe plaintiffs and tbe admitted facts, tbis instruction was as favorable to tbe plaintiffs as they were entitled to. They say tbey discovered that tbe corn being shipped by tbe defendant bad no tags on it, and was short in weight and defective in quality, before tbe shipment containing tbe 45 sacks was made, and that tbey continued to receive and sell it. Tbe defendant sent tbe analysis tags to tbe plaintiffs as soon as notified of tbe necessity for them, and wrote them on 9 April to dispose of tbe corn in any way tbey thought best. Tbe corn seized by tbe Department of Agriculture was in tbe possession of Smith Paul two weeks before tbe seizure, and be says be made no complaint about tbe corn, and tbe defendant paid tbe charges to tbe department. During tbis time tbe plaintiffs made no effort to release tbe corn from seizure, and, as tbey say, tbey bad nothing more to do with it and permitted it to remain in tbe warehouse until it became worthless.

We find

No error.