Fruit Dispatch Co. v. Magee

<p>Appeal, No. 272, Oct. T., 1913, by plaintiff, from judgment of C. P. Northampton Co., April T., 1912, No. 70, on verdict for plaintiff in case of Fruit' Dispatch Company v. Horace L. Magee, et ál., trading as Magee Brothers.</p> <p>Assumpsit for goods sold and delivered. Before Stewart, P. .'J.</p> <p>The court charged in part as follows:</p> <p>■ The action that you are .now trying is one brought by the Fruit Dispatch Company against the firm of Magee Bros. The suit is brought, in the first instance, to recover a bill for some cocoanuts and some bananas which were sold by the plaintiff to Magee Bros., and the date of that transaction is December 5th. The amount of the transaction is $199.87. There is no dispute about either date, December 5th, or the amount, $199.87, of that first transaction between these parties. But Magee Bros, had another transaction, and there is where the dispute comes in; and the defendants, the Magee Bros., now claim that by reason of the failure of the plaintiffs to fulfill their contract which took place on the 15th of December, that is, ten days after the one that I have first spoken of, they suffered damages.</p> <p>Now, it is undisputed in this case, from any point of view, as the court understands it, that there was some conversation, either over the ’phone, or by word of mouth, or in both ways, between Mr. Magee and Mr. Gallagher. There is no dispute about that. Mr. Magee, as the court remembers it, says that he called Mr. Gallagher up, had a conversation with him about the purchase of 500 bunches of bananas, and when he went to Philadelphia, at a place which he indicates and identifies, on the steps of the auction room, at an hour which he remembers, which was, as the coiirt remembers it, at a quarter of one, he would have you believe that he made a definite contract for these 500 bunches of bananas which were to be delivered to Mr. Magee to have them here on Saturday, and he has given you the reason why he wanted them — for his Christmas, trade.</p> <p>. Now, he says, that that was a verbal contract entered into between him and Mr. Gallagher acting for the plaintiff ;. and his position is that that is all there was in the matter; that it was begun and ended — it was a finished transaction. Now, are you satisfied, from all the evidence in the case, that that was the way this, matter, took place between the parties; because, if that was so, then the fruit company never delivered the goods, the bananas, to Mr. Magee at the time he stipulated, and I say to you, as a matter of law, that their defense that the weather was too cold is not a good defense. Impossibility of performance is not a defense. A man who enters into a bargain where the delivery depends upon weather conditions must be held to know that there are likely to be changes, and if he wants to relieve himself from the performance of his contract it is very easy to say so — very easy to put it in writing that he shall not be compelled to ship the bananas if the weather is too cold and the weather is going to destroy them. Nor do I find anything in these conditions which I have read over of these changes; because as I read these conditions, if the conditions are applicable, if they had shipped these bananas and they had frozen it would have been at the loss of the Magees. So I say to you, gentlemen of the jury, that that is not a defense, and so charge you as a matter of law. And when the court charges you as to what the law is, it is to be expected that you will take what the court says as being the law upon that subject. When it comes to matters of evidence, it is your recollection which is to govern and you are the judges of matters of fact, not my statements as to recollection of facts, but your recollection governs. In matters of law, you are expected to take the law as the court lays it down.</p> <p>[But, the plaintiff, the fruit company, in answer to .this claim, puts in another defense; and they say that Mr. Gallagher is not such an agent as would be entitled to make any contract, and that all contracts, as the court understands it, are subject, in the first place, to this paper which is marked Exhibit No. 1, and the significant words of that paper are, after acknowledging the receipt of a telephone order, “this memorandum is merely an acknowledgment and not an acceptance of your order .which is to be accepted only by shipment and upon and subject to the terms printed on the back hereof.” If you should find that that contract was entered into, as I said before, between Magee and Gallagher, and nothing was said about sending any memorandum, such as this is, they couldn’t send that memorandum to Magee and make it a part of the contract unless the Magees had bound themselves by something, either in writing or by a course of dealing, which would make a memorandum, such as this, a part of the contract. Therefore, it becomes important for you to consider whether they did so bind themselves.] . (2)</p> <p>It appears that some timé in March, 1909, on the 15th, that the Magees had signed this yellow paper, which is marked Exhibit No. 6, in the presence of Mr. Arnold, who lives in the Third Ward of the City of Easton, who happened to be in their room, and in the presence of Mr. Gallagher, and their names appear here as witnesses, That receipt refers to this book, and by the terms of this book the same wording that you find upon the back of the memorandum is made part of any contract which may be entered into at that time or in the future between the plaintiff and the defendant in this case.</p> <p>Now, it also appears, according, to the testimony of Mr. Magee, and according to the exhibit, which is No. 4, I think, that about a year afterwards, on May 1Ó, 1910, the Magees sent back this book, and substantially, as it appears from the contents of- the letter, said: “We return your code. We do not see any advantage in using the code at all, as you have never put any price in the telegram.” If they sent that back to the fruit company, and the fruit company received it, and there is a presumption of law if it was mailed to them and properly addressed they got it, then the Magees would not be bound by that code and by the conditions which are contained in the book, because it would be the duty of the fruit company if they intended to bind them to call their attention to the fact that they were sending back that which was a. part of the original contract. There is no evidence that there was any action of that kind taken by the Fruit Dispatch Company. But they say that irrespective of that the whole course of dealing, every one of their transactions, whether by ’phone or verbal, every single one of them, was subject to confirmation by memoranda that are similar to this one, and that the Magees knew that the only acceptance of the order would be by shipment; that is to say, until the fruit company actually shipped the goods, sent the goods on the car, that there was no order binding between the parties. If you believe there was such a course of dealing, that the Ma-gees knew or ought to know that every order that they placed with them would be subject to this condition and that there would be no contract until there was a shipment, then it would be your duty to find that the plaintiffs had sustained their claim in answer to the cláim for set-off.</p> <p>. Verdict and judgment for plaintiff for $61.64. Plaintiff appealed.</p> <p>Errors assigned were in refusing binding instructions for plaintiff and portion of charge as above quoting it.</p>