Pampa Grain Co. v. Oklahoma City Mill & Elevator Co.

248 F. 477, 160 C.C.A. 487, 1918 U.S. App. LEXIS 1443

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 28, 1918
• Docket: No. 3028
• Status: Published

Opinions

BATTS, Circuit Judge,

The Pampa Grain Company sold to the Oklahoma City Mill & Elevator Company two lots of wheat, of 6,000 bushels and 15,000 bushels; the Elevator Company being represented in the transaction by Kent Barber, and Tom F. Connally, and the Pampa Grain Company by A. C. Matthews. Immediately after the transaction between these representatives of the concerns, and in accordance with the practice resulting from an observance- of the rules of the Texas Wheat Growers’ Association, the Oklahoma City Mill & Elevator Company wrote letters -of confirmation, which were signed by the Pampa Grain Company and returned. These letters constitute evidence of the contract between the parties. Pertinent provisions are:

“We confirm purchase from you to-day by Tom F. Connally of - capacity cars 6,000 bushels No. 2 hd. wheat at $1.18% basis, delivered Galveston, shipment this week days via-. Galveston weights and Galveston grades. Ship to S. O. Notify Oklahoma City Mill & E. Co., Galveston, for export. Care of Galveston Wharf Company Elevators.

“Please comply with routing requested. We reserve the right to change destination of shipment in transit. Draw on us at Oklahoma City, with shipper’s order bill of lading attached, leaving sufficient margin to guarantee 'weights and grades. Shipper pays weighing, inspection, trackage, and exchange, if any. Delivery of grain not perfected until grain reaches destination specified and has been inspected and weighed. We reserve the right to unload off grades grain without first notifying you. On contract not filled in contract time we reserve the right 'to cancel, extend time or buy in for seller’s account.”

After the signatures:

“Dower grades to apply at the following discounts: No. 3, 58 or better, 1 cent off; 57, 2 cents off; 56, 3 cení s off. * * * Rejected wheat, 58 lb. or better, 6 cents off; one cent additional off for each lb. below 58 lb. No-grade wheat, if merchantable, 58 lb. or better, 7 cents off,” etc.

Immediately after the making of these contracts, the wheat was loaded on cars of the Atchison, Topeka & Santa Fé Railway Company, and bills of lading were issued to the Pampa Grain Company, “notify Oklahoma City Mill & Elevator Co., at Galveston, Texas.” Drafts, with these bills of lading attached, were put in bank by the Pampa Grain Company, and, upon presentation, were paid by the Oklahoma City Mill & Elevator Company. After payment of the drafts and the delivery of the bills of lading to the Oklahoma Company, the grain was destroyed in the storm at Galveston in August, 1915. The issue is "as to who is to stand the loss. No question would arise as to the completion of the sale, except for the language in the confirmation:

“Delivery of grain not perfected until grain reaches destination specified and has been inspected and weighed.”

There may be a sale without completed or perfected delivery. By delivery of the bills of lading, and by the express terms of the confirmation letter, the Oklahoma Company acquired complete dominion over the property, with the right to change its destination in transit, to sell at this changed destination, or to sell in transit. The Oklahoma Company acquired with reference to it all the rights of ownership. It must be held to have the corresponding obligations and liabilities. As the owner of the property it must stand the loss of its destruction. The contract contemplated that there might he readjustments in weight, and this was what was in the minds of the parties as required for perfecting the delivery at the point of destination. The contract as written leaves the destination uncertain. The phrase “wheat at $1.18% basis, delivered Galveston,” has reference to the price, and was not, within itself, sufficient to name the place of delivery. Ther order in the letter was to ship to Galveston for export, hut the right to change destination of shipment in transit was reserved, and, in any event, Galveston was not the point of ultimate destination. However that may he, it is quite certain that the incidents of ownership passed to the Elevator Company by the payment for the property and the receipt of the bills of lading, and the loss must necessarily fall upon it.

The judgment is reversed, and the cause remanded for proceedings not inconsistent herewith.

Reversed and remanded.