HOWELL et al. v. GROCERS, Inc., 2 F.2d 499

DONAHUE, Circuit Judge. It is not only impracticable, but unnecessary, to review in detail the seventy assignments of error. It is insisted upon the part of the plaintiff in error that the written telegrams and letters exchanged between the broker and the defendant, and the entries in the broker’s journal, constitute a written contract, that it was error on the part of the court to admit evidence tending to prove custom or other parol evidence to vary its terms, and that it was the duty of the court to construe this written contract in accordance with its clear and unequivocal provisions.

This contention wholly overlooks the averments in the declaration that these telegrams and letters did not constitute the entire contract, but that the agreement was subject to the manner and custom of dealing established between the parties, and that, in accordance with this custom, the defendant was entitled, at any one time, to purchase one carload not exceeding 600 bags, of 100 pounds each, of sugar, on open account. It also overlooks at least three of the invoices furnished by the plaintiff to the defendant in which the following appears: “Please note this invoice is rendered on a cash basis.

Payment in seven days. * * * ” The averments in the declaration and the statements contained in these invoices would warrant the jury in finding that the plaintiff did not, either at the time these telegrams were exchanged or at the time this action was commenced, construe the terms “cash basis 2 per cent., 7 days,” as meaning that the sugar was to be shipped sight draft with bill of lading attached, or that defendant was not entitled to have at least one car shipped upon open account in accordance with the custom established by prior dealings between the parties.

It therefore clearly appears that both plaintiff and defendant understood that all the terms of this contract were not written into the telegrams and entries on the broker’s journal, and that, notwithstanding the statement in the broker’s letter, “Shipment on a 22-cent cash less 2 per cent. New "York basis,” some credit was to be extended defendant, but they differ materially as to the extent of that credit. For this reason the court did not err in admitting evidence tending to prove the terms of credit claimed by defendant and properly submitted this disputed question of fact to the jury.

It is also claimed that the court erred in submitting to the jury the question whether there was or was not a contract between these parties for the purchase and sale of these three carloads of sugar. The defendant offered to buy five carloads. The plaintiff allotted it but three. The defendant never expressly agreed to purchase three carloads, instead of five, but it did accept the first car shipped to it on open account.

If there was no dispute as to the terms of this contract in reference to the time and manner of payment, then the acceptance of this car might properly be held to estop defendant from denying it had accepted plaintiff’s counter proposition to sell it three cars; but the acceptance of one car invoiced on open account by no means estops defendant from asserting that, by the terms of this contract, all of these cars were to be invoiced upon open account, 2 per cent., 7 days.

If the plaintiff understood that the defendant was entitled to have only one ear shipped upon open account, and it was the understanding of the defendant that all of these cars would be so invoiced, then the minds of the parties never met upon this important part of the contract. For this reason the court properly left that question to the jury.

It is further insisted upon the part of the plaintiff in error that this broker had no authority whatever to extend credit; that in accordance with the usual custom of firms engaged in like business it employed a credit man for that purpose, and that this credit man had sole authority to determine the credit to which any customer was entitled. However that may be, it is alleged in the declaration that this broker had full authority to make this contract on behalf of the plaintiff and the defendant.

The evidence offered by the defendant tending to prove that this broker did agree with the defendant that sugar would be shipped to it upon open account 2 per cent., 7 days, is uneontradieted. If it were conceded that this broker had no authority to make such a contract on the part of the plaintiff, nevertheless the plaintiff was fully advised by the defendant’s letter of May 15, 1920, as to the terms of credit extended to the defendant by the broker, and in that letter the plaintiff was requested: “If these are not your terms, please advise us promptly.” To this letter the plaintiff made no reply.

If the broker was not authorized by plaintiff to make this agreement as to terms of payment, it was the duty of plaintiff to so inform defendant at that time. It cannot now be heard to deny the broker’s authority. Under this evidence the jury was warranted in finding, either that the minds of the contracting parties had not met upon the terms of the contract, or, if there was a contract, its terms as to credit were as claimed by defendant. In either event, the plaintiff would not be entitled to recover.

Upon a careful examination of the entire record, it' does not appear that any error intervened on the trial of this ease to the prejudice of plaintiff in error. The judgment of the District Court is affirmed.