Action for $2,016 damages alleged to have been sustained by the plaintiff, a corporation, by reason of the breach of a contract by the defendant, also a corporation, for the sale of 60 bales of cotton from the defendant to the plaintiff. *Page 329
The following facts are not in dispute: On May 12, 1919, the defendant delivered to the plaintiff a memorandum in writing confirming the sale by it to plaintiff of 60 bales of cotton of a certain grade at 15 1/2 cents per pound "landed"; the shipment was to be "prompt," and the terms, "Carolina Mill Rules of 1915." The defendant did business in Spartanburg; the plaintiff had a branch office of its Greenville business at Spartanburg; and the memorandum was addressed to E.P. Murray, the plaintiff's manager at Spartanburg.
The Carolina Mill Rules referred to provide that cotton sold for "prompt" shipment must be shipped and bills of lading dated within 14 days from date of sale, and, when the time of shipment specified in the contract has expired, and the cotton contracted for has not been shipped, settlement shall be made upon the market differences, plus one-fourth of a cent per pound as a penalty.
The cotton not having been delivered, the plaintiff wrote to the defendant on May 20, 1919, four days after the expiration of the delivery dated under said Rules, calling attention to the contract of May 12, 1919, expressing its willingness to receive the cotton at any time and requesting immediate delivery through its manager at Spartanburg, Mr. Murray. In this letter the plaintiff declared its interpretation of the contract to be a delivery at Gibson, N.C.
The defendant having made no reply to this letter of May 30th, the plaintiff again wrote the defendant on June 16th, stating that no reply had been received, and notifying the defendant that unless the cotton was delivered to it within 10 days it would "buy same in for your account, billing you with the difference in cost." On June 17th, defendant acknowledged receipt of the letter of 16th, stating that Mr. Cooke, who handled such matters, was out of the city, and that upon his return early the following week he would take up the matter. *Page 330
On June 23 the plaintiff wrote the defendant, referring to the promise contained in the letter of 17th, and notifying the defendant that, if nothing was heard from it by the 26th, the plaintiff would buy in the 60 bales and bill the defendant for the difference in cost. Not hearing from the defendant within the limited time, the plaintiff went upon the market on June 26th, and purchased from A.C. Walker, a cotton merchant in Greenville, 60 bales at 23 cents per pound, and drew upon the defendant for the difference in cost $2,016, which draft the defendant declined to pay. For some reason, unexplained, this draft was not made until July 11th.
On June 28th, the defendant replied to the plaintiff's letter of the 23d, disclaiming all fault in the nondelivery of the cotton, for the reason that it was understood, when the cotton was sold, that it was to be taken up at one, and that the plaintiff had promised to send a man for that purpose; that the failure of the plaintiff to send a man caused Pate, the man from whom the defendant had contracted to buy the cotton to sell to another party; the defendant saying (quoting from said letter):
"We certainly feel that after selling you the cotton, it was clearly up to you to receive the cotton as we instructed you, and furthermore, had you permitted us to ship the cotton and guarantee weights and grade without some one taking up the lot, this would never have occurred"
The defendant's defense, set forth in its answer, is as outlined in the letter last referred to, and is in effect this: That at the time of making the contract of sale, and as a part of it, the defendant had on hand 20 bales in a warehouse at Laurel Hill, N.C., and 40 bales at Gibson, N.C.; that the plaintiff was notified of that fact; that the plaintiff agreed to send a man immediately to those points and take up the cotton, relieving the defendant of all further efforts or concern in the matter; that the plaintiff failed to comply with that engagement, and that, by reason thereof, *Page 331 the said cotton was sold to other parties; and that, if the plaintiff sustained any damage, it was due to its failure to take up the cotton as had been agreed.
As a matter of fact, the evidence shows that the defendant did not have the cotton at the places stated, and at the time of the contract of sale with the plaintiff. The cotton was then in the warehouse, and had been only contracted for by the defendant with the owner J.V. Pate; that contract matured on May 13th, but had not been paid for, the defendant evidently expecting to pay for it out of the proceeds of sale to the plaintiff.
As a matter of fact, it appears from the testimony of the defendant's manager, who made the contract with the plaintiff, that the alleged agreement on the part of the plaintiff to take up the cotton at the North Carolina points was made after the contract of same had been completed, and of course could not have entered, as alleged by the defendant, into the original contract as a part of it.
The presiding Judge ruled out all testimony relating to the agreement referred to, and directed a verdict in favor of the plaintiff for the sum sued for, $2,016. From the judgment entered upon the verdict, the defendant has appealed.
There was much testimony in the case as to the meaning of the alleged ambiguous word "landed," which appears in the written memorandum of the contract: "15 1/2 cents per pound landed." In my opinion the case does not at all involve the meaning of that word. In the first place, I see absolutely nothing ambiguous about it. The contract was made in Spartanburg; the plaintiff's place of business was there; and the contract upon its face meant that the defendant was to deliver the cotton at Spartanburg free of all freight charge. The cotton was presumed either to be in Spartanburg, or to be delivered there without cost to the buyer. If it had been elsewhere, and the seller had proposed to bill the buyer with the cost of transportation to *Page 332 the delivery point, the contract would have read "f. o. b." at the point where the cotton actually was.
But it is suggested the word in the trade means that shipping directions would have been given by the buyer to the seller before any obligation on his part arose. Assume this to be true, the defendant made absolutely no complaint upon this ground, but from the very first planted his defense upon the ground that the plaintiff had agreed to take up the cotton immediately at the North Carolina points, and that, having failed to call for it as agreed, he (the seller) was released from all obligations under his contract.
The truth of the matter is that the seller was operating upon a "hand to mouth" system, and, having failed to meet its contract with Pate by reason of the failure of the plaintiff to call for the cotton, and Pate having sold the cotton to others upon the failure of the defendant to comply, it claims absolution from its contract with the plaintiff. It was incumbent upon the defendant to comply with its contract with Pate and have the cotton ready for delivery under the contract with the plaintiff. The trouble is that cotton was rapidly advancing; in the short period of from May 12th to June 26th it advanced from 15 1/2 cents to 23 cents, and the defendant must present a better excuse for not complying than he has done to induce my concurrence in its absolution. As cotton was advancing Pate was not at all indulgent to the defendant in the extension of its contract with him, which was perfectly natural, and closed out one of them on May 24th, two days before the maturity date of the plaintiff's contract with the defendant.
The Circuit Judge was entirely right in excluding evidence of the agreement alleged to have been made by the plaintiff to take up the cotton immediately. In the first place, the agreement is alleged in the answer to have been a part of the original contract. The defendant's manager shows explicitly that it was not; that it was made after the contract was concluded, either on the afternoon of the *Page 333 12th or the morning of the 13th; and if it had been a part of the original agreement it would have been in conflict with the written memorandum, and evidence of it, in contravention of the accepted rule. In the second place, if such an agreement had been made after the contract was executed, no such defense was set up in the answer; on the contrary, it is alleged to have been a part of the original trade. In addition to this, the plaintiff wrote the defendant on May 30th:
"Since that time we have acted entirely in accordance with your instructions in our efforts to receive this cotton but so far without success."
It is strange, if the defendant's present position was not an afterthought, that no reply to this statement was made by the defendant until June 28th, after the cotton to cover had been brought by the plaintiff, and even then no controversion of the plaintiff's statement. Besides, on May 30th, in this same letter, the plaintiff wrote to the defendant expressing its willingness to receive the cotton and requesting prompt delivery. This was four days after the maturity date of the contract had expired.
I do not think that in any view of the case the plaintiff was responsible for the defendant's disappointment in its trade with Pate, or that the defendant has shown the slightest justification for failing to comply with the contract sued upon, and think that the direction of a verdict was entirely right.