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8 F.(20) 606 person, who within the option period exer- gathered crops and other products therecised it and took over the properties; that from, and had been afforded ample opporthe consideration for the assignment was tunity to know said lands, and every part that the assignee should pay the plaintiff thereof, so that it either knew or should the sum of $50,000; that the option, cover- have known of the falsity of said represening several pieces of real estate and per- tation." sonal property, contained the representation [2] This is an action in tort for damages that the Nocatee grove, one of the pieces of resulting to plaintiff by reason of represenreal property covered by the option, con- tations as to the acreage of grove and surtained approximately 175 acres, and lands rounding lands described in a certain option surrounding aggregated 300 acres; that given him by defendant and transferred by plaintiff believed and relied upon this rep- him to a third party. In order for the resentation, and was induced thereby to take plaintiff to recover, it is necessary for him the option, when in truth and fact the No- to show that the representations were uncatee grove contained approximately 135 true, or recklessly made, or that he knew or acres and the surrounding lands all con- ought to have known of their falsity, that taining about 225 acres; that defendant they must have been material in inducing well knew that said representation as to the plaintiff to enter into the contract, and acreage of the Nocatee grove and surround- the plaintiff must have been ignorant of ing lands were false, and that the plaintiff their falsity and been deceived thereby. The was ignorant of same, and relied upon such defendant, in addition to the pleas now in representations; that the grove was of great question, pleaded the general issue of not value, to wit, $1,000 per acre, and the sur- guilty. rounding lands of the value of $100 per [3] One of the grounds of attack is that acre, making a difference in value of more the facts pleaded are covered by the general than $40,000; that, relying upon the rep- issue. The Legislature of Florida, by chapresentations of the acreage of the Nocatee ter 10024, prescribed the office of the plea grove and the lands surrounding, the plain- of not guilty in tort actions as follows: tiff negotiated the transfer of the option on Section 1: "In actions for torts the plea the acreage basis to assignee; that on the of not guilty shall operate as a denial only 29th day of March, 1923, the assignee of of the breach of duty or wrongful act althe option exercised his right, and tendered leged to have been committed by defendthe payments reserved in the option, and ant and not of the fact stated in the inducedemanded deeds, when it was discovered that ment and no other defense than such denial the Nocatee grove and surrounding lands shall be admissible under that plea; all othdid not contain the acreage represented, not- er pleas in denial shall take issue on some withstanding which discovery the assignee particular matter of fact alleged in the decexercised the option and received deeds to laration." the property covered therein; that plaintiff, In this case the wrongful act complained by reason of the shortage in acreage, was of was the making of the representation, compelled to receive from the assignee a knowing it to be false, thereby inducing the sum less by $25,000 than he would, had the plaintiff to enter into the contract. This is acreage been as represented, and claims this the first additional count. In the second, amount as his damages by reason of the that it was recklessly made without authenfalse representations.

tic information; and, in the third, that the “The second count is like the first, except defendant knew or ought to have known the that, in lieu of alleging the knowledge of falsity of the representation. Any evidence the defendant of the falsity of the repre- tending to prove the contrary of these would sentations, it is alleged that the representa- be admissible under the general issue. If tions were made recklessly and without au- the defendant desires to traverse other matthentic information as to the truth or falsity ters, they must be specially pleaded. thereof, and made for the purpose of induc- [4] Another ground of objection to these ing the plaintiff to rely and act thereon. pleas is that they call for oral testimony of

“The third count is like the first, except, transactions at or before the execution of in lieu of alleging knowledge of the falsity the option, to vary or add to the written inof the representation of acreage, it lleges strumen This last position is not in my that the defendant for several years had judgment tenable. This is not a proceeding been the owner of said lands, and from between the parties to enforce the writing. time to time had inspected, worked, culti- This is an action in tort, and the only ofvated, and fertilized the properties, had fice the written option could perform is to prove that the representation was made as resentations as to the number of cattle in alleged. The Alabama courts have had be- a herd, made by the seller to the buyer, fore them the question involved in this evidence that the herd, as actually sold, was ground. “The proceeding, of course, was worth more than the price paid, and that, not for the enforcement of the contract be- had the buyer known that it contained only tween the Singer Company and defendant. the number which it actually did contain,

3 F.(20)-39

If the appropriation was not with he would nevertheless have bought it for the intent to defraud the employer, but was the same price, is admissible.” In that case honestly made to pay the office rent, in re- the bill of sale was given, describing the liance upon the agent's statement, sought to herd of cattle as containing 300 head, more be proven, as the defendant claimed to have or less. The herd contained only 225 head. been the case, as to a part of the funds re- [5] Any pleas which traverse the igno.ceived by him, it would be manifestly unjust rance of the plaintiff of the property de to deny the defendant the right to make scribed in the option, his reliance upon the proof of the promise of the agent, as going representation of acreage as the inducing to show his intent in making the appropria cause for entering into the contract, or settion. The rule that, as between the parties ting up his familiarity with the property, to a written contract, its terms cannot be are proper to be pleaded. added to, altered, or varied by parol stipu- [6] Now, testing the pleas by the princilations, made at or before its execution, has ples announced, the first plea sets up the no application to the case. That will ap- ignorance of the defendant of the actual ply when the contracting parties come to area of the grove and its honest intention litigate their rights evidenced by the con- in making the representation. This plea tract." Walker v. State, 117 Ala. 52, 23 does not state a defense to the first count, So. 152.

and fails utterly to be a response to the sec“Plaintiff was asked by his counsel: ond and third counts. The demurrer will 'Was there any agreement between you and be sustained. Bradshaw, as president of the Industrial The second plea traverses the fact that Company, about the indebtedness which had the plaintiff relied upon the representation accrued on the farm, at the time of the as an inducement to enter into the contract, sale ? An objection that this question and states a defense to each of the counts. sought to vary by parol the terms of a writ- The demurrer will be overruled, and the ten contract was sustained. If plaintiff's motion to strike denied. appropriation of the cotton was honestly The third plea is much to the same efmade, in reliance upon an agreement made fect, and the allegations might possibly be between him and Bradshaw, plaintiff had proven under the second plea; but under the right to make proof of an agreement the circumstances it is better that it should which authorized the appropriation for the remain in the record, and therefore the de purpose of showing his intent, and thereby murrer will be overruled and the motion dethe falsity of the alleged slander, and, fur- nied. ther, Bradshaw's knowledge of its falsity; [7] The fourth plea simply "denies" that and this, without impinging upon the rule the option was assigned as alleged. This that, as between the parties in any proceed- method of pleading is not permissible in acing to enforce the contract, the writing be- tions at law. In any event, it would simply came the sole memorial of all prior and con- go to the damages. The motion to strike temporary agreements not merely collateral will be granted. thereto." Phillips v. Bradshaw, 167 Ala. [8] The fifth plea alleges that plaintiff 207, 52 So. 665.

knew that the defendant did not know the In the first case there was a criminal

area of the grove. This might be true, and prosecution, and in the second a suit for yet the defendant, under the circumstances slander; but I cannot see why the princi- surrounding the parties, might not be reples applied in these two cases do not ap- lieved from the results of its representation, ply with equal force in the instant case. and the pleading must be most strictly conAnd, applying the principle in the instant strued against the pleader. The demurrer case, it is evident that the objection on that will be sustained. ground is not well taken.

The sixth plea alleges that the representaIn the case of Carson v. Houssels, 51 S. tion was placed in the contract at the speW. 290, the Texas Court of Civil Appeals, cial instance of the plaintiff, after he knew in the second headnote, has this to say: that defendant was ignorant of the exact "On an issue of the materiality of false rep- area of the grove, and that it was copied in3 F.(20) 611 to the option. What I have said above as Keeney & Dalby and King, Mahaffey & to the fifth plea applies to this one also. Wheeler, all of Texarkana, Tex., for plainThe demurrer will be sustained.

tiff. [9] The seventh plea is interposed on Arnold & Arnold, of Texarkana, Ark., and equitable grounds. The only equity I can M. E. Lesser, of Memphis, Tenn., for de see in the plea is based on the claim of es- fendant. toppel. While, the brief of counsel says something about fraud, I find no facts ESTES, District Judge. The suit here is pleaded which would show fraud on the part for the recovery of something more than of the plaintiff in obtaining the option, or $4,300, paid by the plaintiff to the defendin procuring the representation of the area ant under circumstances that are alleged in of the grove; and the same may be said as substance to be as follows: The defendant, to the claim of estoppel. Many of the alle

a corporation that distributes in this section gations of the plea would be admissible in the products of the Libbey-Owens Sheet defense of the action at law, under the prin- Glass Company, proposed, through an acciple before announced, and, the plea being credited officer, to the managing officer of the devoid of equity on the ground of fraud or plaintiff, to sell to the plaintiff "all of the estoppel, the plea will be stricken.

glass that plaintiff might desire to purchase that was manufactured by the Libbey-Owens Sheet Glass Company" at prices reflected by the "regular list price of the Libbey-Owens

Company. “The defendant agreed to sell TEXARKANA CASKET CO. v. BINSWANG.

to the plaintiff all glass or glass products ER & CO. OF TENNESSEE.

of the Libbey-Owens Sheet Glass Company

make at the same price that said glass or (District Court, E. D. Texas. Texarkana Di- glass products could be purchased from any vision. December 31, 1924.)

other dealer or jobber of said glass, and ofNo. 140.

fered to fill any and all orders for Libbey

Owens glass given defendant by the plain1. Contracts om 10(4)-Agreement to fill or.

tiff at said price—that is, at the regular list ders at certain prices, without obligating buyer to place orders, held void for want of mu. price as fixed by the Libbey-Owens Sheet tuality.

Glass Company for the selling price of its An agreement by one party to fill orders for glass, and at the price that it could be goods from the second party at stated prices, bought by the plaintiff from other dealers but which did not obligate the second party to

or jobbers." The proposition was accepted, give any orders, lacks the element of mutuality, and is not enforceable.

and the plaintiff "agreed that thereafter the

plaintiff would order such glass or glass 2. Sales @ma22(3)–Orders for goods are not products of the Libbey-Owens make or man

in execution of void contract, unless so understood by both parties.

ufacture as it desired from and through the Where orders were given by party to void defendant.” On various dates, set out in contract, requiring one party to fill orders at the petition, four carloads of glass were certain prices but not obligating other party to ordered and paid for at prices that were place any orders, in order that they should be governed as to prices by its terms, it must have subsequently discovered to be in excess of been understood by both parties that they were the Libbey-Owens list price, to the extent given and accepted with reference to it. of the amount sued for. 3. Payment 85(3)-Payment for goods held

The details respecting the amount of glass not recoverable on ground of mistake. purchased and the excessive charge on each

Where plaintiff ordered goods from defend- car are set forth in the petition, and the ant, and paid for them at agreed prices, the claim is made that in each instance more fact that it supposed such prices to be the list prices of the manufacturer, because defendant

was paid than should have been paid “unhad previously made an agreement without con- der the agreement” between the parties. It sideration, and by which it was not bound, to is alleged that such glass could have been furnish goods at such prices, did not constitute purchased from other dealers at the list payment under a mutual mistake of fact, which price of the Libbey-Owens Company, and entitled plaintiff to recover the excess such list prices.

that the excessive payments were made in

consequence of “the representations and At Law. Action by the Texarkana Cas- agreements

made

as aforesaid, on ket Company against Binswanger & Co. of behalf of and for the defendant; Tennessee. On motion by defendant for that the defendant did not comply with its new trial. Granted.

said agreement,

but that the de

over

swer.

cer

fendant fraudulently charged and billed said these orders, testified that he thought, when various shipments of glass to the plaintiff the quotations were received and the orders at increased prices, as herein alleged, and given, that they were from the list price, as the said money over and above the regular provided in the contract, and that he could list price of said glass, which was paid by have gotten glass of another make elsewhere the plaintiff to the defendant, was paid at list prices. without consideration, and that in law and The testimony in behalf of the defendant in morals said money belongs to the plain- tended to sustain the allegations in the antiff."

The correspondence and quotations The answer denies the execution of the relating to each car were in evidence, and contract in question, and alleges that sepa- there was no controversy in the testimony rate negotiations were conducted and sepa- on any material point, except with respect rate contracts were executed by the par- to the initial conversation or contract, on ties with respect to each shipment, and that which, as I construe the pleading, the right the amounts collected were in accordance to recover is founded. with the provisions of said separate con- The issue thus raised was submitted to tracts. There were additional allegations the jury under instructions that required and defenses pleaded, but,' in view of the the verdict to depend upon answers to three subsequent disposition to be made of the questions. The first was whether the concase, it is unnecessary to discuss the merit tract referred to was in fact made; the secof them.

ond, whether the orders that were given to For the plaintiff the evidence was in sub- the defendant were given in reliance on the stance that Mr. Krouse, the executive offi- part of the plaintiff on said contract. The

of the plaintiff, casually met, in jury were told that, if either of said quesMemphis, the manager of the defendant, tions were answered in the negative, the and was solicited by him to order through verdict should be for the defendant; but, if the defendant concern such carload ship- both were answered in the affirmative, the ments of glass of a certain kind as plain- third question, which had to do with the diftiff might need in the future. The rep- ference between the amount paid and the resentation was that the defendant had re- amount of the list price, should be considcently become a sort of distributing agency ered, and that the verdict, in such event, in that section for the Libbey-Owens prod- should be in favor of the plaintiff for the ucts, and the patronage of an enterprise of amount of such difference. the size and character of the plaintiff would The verdict was for the plaintiff, and the inure to the defendant's benefit. For such defendant has filed a motion for a new trial, considerations, the proposition was made to in which the point, among others, is made sell to the plaintiff carload lots of glass at that its motion at the close of the testimony the regular list price of the Libbey-Owens to direct a verdict in its favor should have Company, and was accepted with the qual- been granted, and that thus, despite the verification that the plaintiff was not under ob- dict of the jury, the plaintiff is not entitled ligations to order all, or even any, of the to recover. glass referred to that it might need. In It must be assumed, for the purposes other words, only such orders as the plain- of the motion, that the verbal contract tiff might see fit to send were to be filled in question was in fact made, and that on the terms indicated; and the plaintiff did the orders for the glass were given by the not have to, and in fact did not, buy all of plaintiff upon the strength of such agreeits requirements for glass of the kind in- ment. It follows that, unless the contract volved from the defendant.

is unenforceable for some reason, the plainThe contract referred to was negotiated tiff is entitled to recover; or, to put it anduring the month of October, 1921. In other way, the defendant is responsible if January following the plaintiff made in- a legal obligation to sell the plaintiff the quiry of the defendant respecting the price goods at the list or factory price rested, unof glass of specified dimensions, was quoted der all the circumstances, on it. a definite price, and a car was ordered on [1] I think there can be no question that the terms thus quoted. Similar procedure the contract itself, as the terms of it were was followed with respect to all of the other detailed by Mr. Krouse, lacked the element cars excepting the fourth, where there was of mutuality. The orders to be given to the no request for quotation of price, but the defendant were conditioned entirely upon order was to send the goods at the current the plaintiff's "will, wish, or inclination." price. The plaintiff's manager, who gave It was under no obligation to order all, or 3 F.(20) 611 even any, of its requirements from the de- mistake of fact—that is, on the mistaken fendant, and it did in fact order some cars supposition of the existence of a specifio from other concerns. The authorities are fact which would entitle the other to the practically unanimous that such an arrange- money—and the money would not have been ment is not an enforceable contract, and in- paid if it had been known to the payer that volves no obligation, from the standpoint of the fact was otherwise, it may be recovered.” law, on either party. "A promise to fur- 21 R. C. L. 164. nish, deliver, or receive specified articles at [2, 3] Counsel very earnestly contend that certain prices, without any agreement to or- these exceptions are applicable to the facts der or to accept any amounts or quantities here. But I do not think so. In order to of the articles, is without binding force or recover on the theory of an executed coneffect, because neither party is thereby tract, the transaction must have been con-, bound to deliver or to accept any quantity ducted with the contract in mind by both or amount whatever.” Cold Blast Trans- parties, or a presumption to that effect inportation Co. v. Kansas City Co., 114 F. dulged. In other words, the evidence would 80, 52 C. C. A. 25, 57 L. R. A. 696; Ameri- have to show that neither party, when makcan Cotton Oil Co. v. Kirk, 68 F. 791, 15 ing the sales, can be said to have regarded C. C. A. 540; Santaella & Co. v. Lange, the arrangement as rescinded. Harvester 155 F. 719, 84 C. C. A. 145; Crane v. Co. v. Mitchel, supra; Crane v. Crane & Crane & Co., 105 F. 869, 45 C. C. A. 96. Co., supra. And, as regards the theory of

It is well settled that a contract, original- mistake, the mistake must have been one of ly unenforceable, may be made into a good fact, and, as applied to the evidence here, and binding arrangement when executed by a mutual one. There was no mistake as one of the parties and its benefits accepted far as the defendant in this case is conby the other. Harvester Co. v. Mitchel (C. cerned, nor was the contract in its contemC.) 89 F. 174. "A contract, when executed plation. It did not pretend to sell or to by one party, is a sufficient consideration fill these orders, except on the terms disfor the agreements of the other, without ref- closed by the correspondence. erence to the obligatory character of the So, from any phase of the testimony, the agreements that have been performed.” recovery must be based on a breach of the Harvester Co. v. Mitchel, supra.

original contract, and in that state of afThe theory on which this doctrine is based fairs a valid or enforceable contract must is, as applied to goods ordered and deliv- be shown. Instead of that, a unilateral enered under such a contract, that a sale is gagement is shown which, at the beginning thereby consummated at the prices provided of the transactions between these parties, in the contract-not that the contract itself

was repudiated by the defendant. If the is good. Cold Blast Co. v. Kansas City Co., plaintiff had the wrong impression respectsupra. “Accepted orders for goods under ing the price quoted in the correspondence,

void contracts constitute sales of and acted on that impression, as the verdict the goods thus ordered at the prices named shows was the case, it must still be shown in the contracts, but they do not validate that the defendant owed a legal duty to the agreements as to articles which the one refuses to purchase, or the other refuses to quote the list price, and to sell from the list sell or deliver, under the void contracts, be- price, before a recovery can be had. That, in cause neither party is bound to take or de- turn, depends on the obligations imposed by liver any amount or quantity of these arti- the contract itself. Since the contraet, as we cles thereunder.” Crane v. Crane & Co., have said, could not be enforced as such, it supra; Oil Co. v. Kirk, supra; Campbell

seems to me that under no sound theory of v. Lambert, 36 La. Ann. 35, 51 Am. Rep. law can the judgment rendered here be per1; Railway Co. v. Mitchell, 38 Tex. 85; mitted to stand. Ashcroft v. Butterworth, 136 Mass. 511. It is therefore the order of the court that

It is also well settled that, "where money the judgment heretofore rendered be set is paid to another under the influence of a aside, and a new trial granted.

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