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(156 Fed. 225.)

LYDIA COTTON MILLS V. PRAIRIE COTTON CO.

(Circuit Court of Appeals, Fourth Circuit. September 11, 1907.)

No. 685.

1. CONTRACTS-CONSTRUCTION-QUESTIONS FOR COURT AND JURY.

As a general proposition, where the issue is one of fact as to the performance of a contract, it is the province of the jury to pass upon it; but, before the question of compliance or noncompliance arises, there must be a determination of the terms of the contract itself, and where it is in writing showing the whole of the agreement, and its terms are capable of intelligent interpretation, its construction is for the court, and not for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, $ 767.) 2. SALES-CONSTRUCTION OF CONTRACT.

In accepting an offer made by plaintiff to furnish a quantity of cotton, defendant wrote as follows: “We understand this cotton is to be full 148 inch staple, same as the staple in the 25 bale sample lot you shipped to us, the grade to be average strict middling, nothing middling. We desire that you be particular in the selection of this cotton as nothing less than full 149 inch, same type as the sample lot will be suitable to us." Held. that the contract so made required the cotton sold to be of the same grade as the sample lot of 25 bales, and that, where plaintiff admitted that the cotton shipped thereunder was not of such grade, it could not recover for breach of the contract by defendant in refusing to accept the same.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 188.] 3. WRIT OF ERROR-GROUNDS OF REVIEW-PRESERVATION_MOTION FOR Dis

MISSAL.

A defendant may assign for error the overruling of a motion to dismiss, made at the close of plaintiff's evidence, on the ground that there was no issue of fact for submission to the jury, although such motion was not renewed at the conclusion of all the evidence, where the only question in issue under the evidence was the proper construction of a written contract plain in its terms, upon which defendant's evidence had, and could have, no bearing.

McDowell, District Judge, dissenting.

In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.

W. R. Richey and Wm. G. Sirrine, for plaintiff in error.

Howard B. Carlisle (Carlisle & Carlisle, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and BOYD and McDOWELL, District Judges.

BOYD, District Judge. The Prairie Cotton Company, the plaintiff below in this case, which will be denominated plaintiff hereafter, is a Mississippi corporation, doing business in that state as a dealer in raw cotton. The Lydia Cotton Mills, the defendant below, which will hereafter be referred to as the defendant, is a South Carolina corporation, located in that state, carrying on the business of a manufacturer of cotton. The present suit was brought by the Prairie Cotton Company to recover the sum of $2,500, alleged to be due the plaintiff on a contract for the sale and delivery of cotton to defendant. The allegations of plaintiff are, in substance: That on the 11th of October, 1904, the defendant contracted to purchase from plaintiff 200 bales of cotton at the price of 1012 cents per pound, the staple to be 148" long, according to the custom of the cotton trade and of strict middling, nothing below middling; that 50 bales of this cotton were shipped to the defendant and were received and accepted; and that 150 bales were shortly thereafter shipped, which were refused. Thereupon the plaintiff, upon the refusal of the defendant to accept the last shipment of 150 bales, sold the same, and the basis of claim in the suit is the alleged loss by reason of the difference in the price received at the sale and the price agreed upon, together with the costs incident to the sale, et cetera, making in all the sum of $2,500.

84 C.C.A.-9

The defendant answers and says: That on the 13th of October, 1904, it agreed to take from the plaintiff 200 bales of cotton at the price of 101/2 cents per pound, but that the cotton contracted for was to be of the same quality and character as the 25 bales which had been theretofore purchased by the defendant from plaintiff as a sample lot; that the cotton was to be full 11/8" in length of staple and was to average strict middling, nothing middling; that the 50 bales of the first shipment were sent with bill of lading attached; that defendant, without opportunity to examine the cotton, paid for it and received it from the railroad by which it had been shipped, but, after receiving it, upon examination, it was found that the cotton was of an inferior grade and was not the kind and quality of cotton, especially in length of staple, as the sample which had been furnished by the plaintiff and as had been contracted for by the defendant; that, when the last shipment of 150 bales arrived, defendant declined to accept that, it being of the same length of staple, quality, and grade as the 50 bales theretofore received, and not such cotton as had been contracted for.

The cause was tried by jury and a verdict rendered in favor of the plaintiff for $2,255.66. The court, however, under a practice which prevails in South Carolina, reduced the verdict to $1,127.83, and for the latter amount a judgment was rendered, to which the defendant's counsel duly excepted. At the close of the plaintiff's testimony the defendant's counsel moved the court to nonsuit the plaintiff on the ground that upon the undisputed evidence the plaintiff was not entitled to recover, and especially upon the exhibition of the communications, by letter and telegraph, between the parties, which were the evidences of the contract of purchase, together with the admissions of plaintiff through its agent, examined as a witness. The court refused to grant the motion, to which the defendant duly excepted. There were several exceptions taken by defendant during the trial; one particularly relied upon relating to the question as to whether or not there was a rescission of the contract by the plaintiff. But we do not deem it necessary to consider this nor any other question involved in the case, except that of a proper construction of the contract of purchase. In order to arrive at a full understanding of the contract, we deem it necessary to give the correspondence between the plaintiff and the defendant in relation thereto in full. The transaction was in 1904, and on the 13th of August of that year the defendant addressed the plaintiff as follows:

"Aug. 13th. "We will purchase a contract of cotton 148 inch staple running from Sept. 1, 1904, to Sept. 1, 1905, the cotton to be paid for as delivered and to be delivered 150 bales per month f. o. b. our mills. This cotton has to average full 148 inch staple, bender, nothing less than full will be accepted. If you are interested in such a contract we will be pleased to have your quotations and views from time to time until the contract is closed."

Plaintiff to defendant:

"Aug. 18th. “Yours 13th to hand. Contents noted. We feel satisfied we can supply your wants as to the character of cotton wanted if we can agree on price. Such cotton as you mention will always command a pretty good preinium over short cotton, say 1 to 1-16 staple. Will however, keep your company posted and will do my best to supply your wants.” Defendant to plaintiff:

"Aug. 17th. "We desire to have you forward us at once a sample of cotton regardless of the grade that measures full 148 inch staple, the length in staple being the point in question. Please let us have this sample at once with all expense charges to us."

Prairie Cotton Company wrote on bottom of this:

"Gentlemen : At present there is nothing in this market that will represent the cotton as required by you. In fact there is no cotton here at all. Will send type as soon as it can be obtained."

Plaintiff to defendant:

“Aug. 31, 1904. "We sent you a few days ago types showing what we call very full 148 inch cotton, in fact it is 14 inch to 1 3-16 inch. Would be glad to know what you consider it. Kindly let us hear from you." Defendant to plaintiff:

“Sept. 1, 1901. “We are in receipt of your favor of the 28th ult, and are to-day in receipt of the sample of 1%inch staple cotton. We have gone over this cotton carefully and find that it will just about average 148 inch staple. So we will re tain this sample as your type of full 149 inch staple cotton for future reference. We are now in the market for 100 bales of this cotton. Let us have your price_landed Clinton, shipment at once. We are also in the market for 150 to 200 bales cotton per month for each month until Sept. 1, 1905. See our letter of August 13th. Will such deliveries be satisfactory with you? Please let us know. We are now ready for your quotations from time to time. We desire the following grade: Strict middling. We purchase by Carolina mill rules."

Plaintiff to defendant:

"Sept. 3, 1901. "Yours 2d to hand; contents noted. The sample sent you is very full 148 inch; in fact it is what we sell for 18 to 3-16 cotton. We sold this cotton few days ago 1234 landed; it is worth 1134 here. We can land you 100 to 200 bales Sept. shipment say for 1244, probably 12 cts. This character of cotton commands good premium. Can sell you commercial 149 inch or full 1 1-6; to 14g at much less price. Cheap cotton is a thing of the past; the crop is not made. Let us hear from you."

Telegram:

"Sept. 12. "Let us ship you 25 bales to show you the style and character of the cotton. Eleven quarter. This quarter less than we are getting, but want make start with you as we are satisfied it will lead to business. Answer." Defendant to plaintiff:

"Sept. 12. "In reply to your esteemed favor of to-day by wire we replied as enclosed confirmation that we could not use the cotton at 1112 cts. We are looking for 1042¢ cotton to-day and lower during the week. We thank you for your offers and hope to have them continually.Plaintiff to defendant (telegram):

"Sept. 13. “We want answer ours last night. Important. You will be pleased with the cotton. Can sell cotton elsewhere if you cannot use." Defendant to plaintiff (telegram):

"Sept. 13. “Will take 25 bales 11 cts. if immediate shipment. Answer." Plaintiff to defendant:

"Sept. 13. "Telegram received. Will ship 25 bales eleven. This complimentary ship ment as we are anxious you try cotton, believing same will result to our mu. tual benefit; cotton goes forward to-morrow."

“Sept. 13. "Your telegram accepting 25 bales 1%inch St. middling, to hand. We replied would ship you the cotton more as a compliment than as a monetary basis. Now you gentlemen will find this lot to be full up, in fact the cotton will pull 1% to barely 3–16. We shipped it full in order that you could judge what the cotton is. You must, however, bear in mind that this is green cotton and will not hold up in weight like old cotton. We make a specialty of staple cotton from 148 to 13s, and if you can pay the price we can furnish you with some satisfactory business. Now if you can use 1-16 to 148, or what is known as commercial 118, can cut the price, but if you expect to buy good first class stuff you must expect to pay first class prices. Hope this little 25 bales will lead to further business."

"Sept. 14. "Yours to hand; contents noted. Not disputing your word, but can't buy 148 cotton such as we expect to ship you or call 148, at 10%. You might buy what you and your friends call 118, and what suits your trade fully as well as if you were getting the actual 148. We want your business and if the 25 bales now going to you not better and worth more money than the 148 you speak of having bought at 1078 we will give you the cotton. We would like to see what you call 14s, or what suits your trade for 149 ; there are a good many different ideas of 118 cotton, but only one of the actual stuff itself. We sold you the 25 bales 12 ct. less than we could have gotten East." Defendant to plaintiff:

"Sept. 17. "We forward telegrams as enclosed confirmation to-day. Please rush this 25 bales of cotton with all despatch; we wish for it to reach Clinton next week without fail as we desire to use it along with other cotton we have. We are in receipt of your favor of the 14th instant and note what you have to say and are interested." Telegram:

"Sept. 17. "On what day was 25 bales cotton shipped? Answer."

Plaintiff to defendant (telegram):

“Sept. 17. "Telegrams received. Bill lading and documents taken out fourteenth. Cotton went via Birmingham and Southern Railway.

Defendant to plaintiff:

“Sept. 21. "Up to this time we have never received the 25 bales of cotton nor B. L. through bank to show shipment. We are unable to trace and we desire that you institute a telegraphic tracer after the lot and see that we get the cotton this week without fail."

Plaintiff to defendant (telegram):

“Sept. 28. "Offer one hundred strict to good middling full inch eighth eleven quarter, handsome lot, can not do better. Answer early to-morrow.”

Defendant to plaintiff :

“Sept. 28. "Your telegram received offering 100 bales 148 inch strict to good iniddling full 1114 cts. We have not yet received the 25 bales of sample cotton shipped by you; we would like to see this cotton before purchasing further. We do not wish to buy at 1114 cts, as we are confident there will be a great decline in cotton within the next 30 or 40 days."

“Oct. 4. “We are just to-day in receipt of your sample lot of 25 bales. We supposed that it had been lost in transit. The lot lost 270 lbs. ; according to Carolina mill rules you are entitled to 3 lbs loss per bale. You will please remit for amount per bill enclosed less your 3 lbs. Please quote us immediately on receipt of this letter your closest price for 1,800 bales of this cotton, 1148 inch staple exactly as your type shown in this 25 bales. Delivery of this 1,800 bales to be made to the mill 200 bales each month until the contract is exhausted. You must give your closest figures to interest us."

Plaintiff to defendant (telegram):

"Oct. 7. "Offer one hundred or two hundred shipment this month equal the 25 bale lot in staple, eleven cents. It requires time and care to select this character of cotton, which is not very abundant, probably shade this price quarter if answer early to-morrow."

Defendant to plaintiff:

Oct. 7. "We are in receipt of your wire offering 100 or 200 bales this month at 11 cts. same as sample lot of 25 bales. We have just purchased some of this cotton at 1044 cts. and with this before us we consider your price too high. If on receipt of this letter you desire to sell us from 200 to 500 bales of this cotton landed Clinton 1014 cts. to be delivered 100 bales Oct., 200 Nov. and 200 Dec., please wire us for acceptance.” Plaintiff to defendant (telegrams):

Oct. 9. "Would advise you taking on more from same parties at price named, 1044, can not supply your wants at such price."

“Oct. 10. "Quote 148 average st. middling, nothing below middling, eleven, if limit impracticable answer the best you can do, will execute order if possible for 100, answer early to-morrow.”

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