Citations
- 64 F. Supp. 114
Full opinion text
RAYMOND, District Judge.
Findings of Fact.
1. Plaintiff is a resident of Sarasota, Florida; defendant is a resident of Hartford, Michigan; and the amount involved is in excess of $3000, exclusive of interest and costs.
2. Roth of the parties are now and for several years past have been engaged in the business of growing and marketing gladiolus bulbs.
3. Plaintiff seeks to recover $38,235 for damages resulting from alleged lost profits because of the failure of defendant to deliver 525,000 gladiolus bulbs of a total of 1,300,000, orders for which (Exhibits 1 and 2) were accepted by defendant on November 3, 1943 and November 23, 1943 (Exhibits 3 and 4). Defendant denies liability and seeks to recover a balance of $1,-125, for the purchase price of bulbs delivered to plaintiff, for which payment has admittedly not been made.
4. Because of variant extremes of weather conditions as to precipitation and temperature, and because of diseases to which gladiolus bulb's are subject, great uncertainty accompanies the growing and marketing of gladiolus bulbs, and the hazards of the business are well known to those experienced and engaged in such production. Estimates of future crops of marketable bulbs are recognized as highly speculative until after digging, cleaning and sorting have been completed.
5. Each of the two orders here involved contained the words “Advance orders subject to crop.” These words, in accordance with custom and usage in the gladiolus bulb industry, are construed as recognizing the possibility of crop failure resulting from the hazards in the industry.
6. In October, 1943, Hubert M. Siegers, a purchasing agent of plaintiff, came from Florida for the purpose of purchasing bulbs from defendant for plaintiff. He remained for several days, and, on October 30, 1943, placed the orders known herein as Exhibits 1 and 2. During his stay, he inspected the defendant’s fields near Hartford, Michigan, and inspected for disease and rot the crop which was then in process of being harvested. He was informed with reference to certain lands leased by defendant in Indiana on which defendant was also producing gladiolus bulbs.
7. The order of October 30, 1943 (Exhibit 1) (which was accepted by defendant on November 3, 1943 Exhibit B), was for 400.000 gladiolus bulbs. On the same day, a tentative order (Exhibit 2) for an additional quantity of such bulbs was placed by said agent Siegers. This tentative order was followed by correspondence between the parties, ending in a definite order from plaintiff for 900,000 additional bulbs, and acceptance thereof by defendant. Both orders were “advance orders” and were expressly made “subject to crop.”
8. The contract of sale which resulted from the orders and correspondence, when construed in the light of the surrounding circumstances, brings the conclusion that these transactions were with defendant as a grower and not as a dealer, and also that the parties contemplated that plaintiff’s orders would be filled from the crop grown either upon defendant’s own land or upon the land under lease by him in Indiana.
9. The varieties and sizes of the bulbs covered by these agreements are specified therein. The quantity of available bulbs after sorting suitable to meet these agreements could not be determined with reasonable certainty prior to January 15, 1944. Prior to that time, defendant had contracted for delivery covering a total (including those ordered by plaintiff) of 6.775.000 bulbs of the same general varieties and sizes. The total of bulbs called for by these contracts as made by defendant did not exceed the normal expectancy from the plantings of defendant.
10. Due to weather conditions, disease and other causes over which defendant had no control, the actual crop of bulbs for the 1943-44 season here in question was much below normal. Generally, among gladiolus bulb growers, the crop was about 50% of normal. Production from the plantings of defendant was considerably below 50% of normal.
11. Defendant attempted to supplement his own production of bulbs by substantial outside purchases. Upon these outside orders he actually received deliveries of something less than 50%.
12. Defendant shipped on his contracts for sale all of the bulbs of the required sizes, varieties and qualities which he had available, both from his own growings and from his outside purchases.
13. The total of shipments