# Ginocchio v. Kockos > Court of Appeals for the Seventh Circuit · April 2, 1927 · 18 F.2d 193 URL: https://www.frixlaw.com/law-library/cases/6834666 ## Case - **Full name:** GINOCCHIO v. KOCKOS - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** April 2, 1927 - **Citations:** 18 F.2d 193; 1927 U.S. App. LEXIS 1923 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Alschuler, Evans - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6834666 ## Opinion text EVAN A. EVANS, Circuit Judge (dissenting) . I do not believe that the evidence presented a jury question upon a material issue. The facts are fully stated in the majority opinion. The contract was in writing. All communications between the parties arising out of plaintiffs’ tender and defendants’ rejection are in writing. Ordinarily such a situation presents legal questions only. Briefly stated, sellers brought the peanuts into the Seattle port, and notified the buyers in Chicago. An inspection disclosed ' the goods to be of the quality specified. The defendants recognized and conceded a valid tender, as is shown by their telegrams of April 9th and 10th. From the one of the 9th this excerpt is conclusive: “We therefore accept tender.” The telegram of the 10th contains this: “We hereby decline accept hundred tons, etc., as tendered by you.” The significant and indisputable faet to be drawn from these telegrams is the unqualified admission that the peanuts of the quality specified had been tendered. The offer of acceptance, it is true, was conditional. The recognition of a tender was unqualified. The other portions of the telegrams and letters quoted in the opinion relate to allowance of defendants’ claim rising out of other transactions. The result of all these negotiations is summed up in the final communication of *196 the defendants, who “hereby disclaim any liability in connection with these goods.” This statement, following its wire of two days previous, “We hereby decline accept hundred tons of Chinese thirty-eight forties as tendered by you,” definitely closed the matter and fixed and determined the rights of the parties. It was conceded upon the argument that defendants breached their contract when they refused to accept these peanuts. In other words, they had no right to attach any condition to their acceptance. Plaintiffs’ right to recover was thus clearly established, and in fact conceded. But what may they recover? The purchase price of the peanuts, or the damages ? When defendants breached their contract, plaintiffs had an election of remedies. 24 R. C. L., p. 86; Ackerman v. Rubers, 167 N. Y. 405 , 60 N. E. 750 , 53 L. R. A. 867, 82 Am. St. Rep. 728 ; Putnam v. Glidden, 159 Mass. 47 , 34 N. E. 81 , 38 Am. St. Rep. 394 . Equally decisive are the eases that hold an election once made is conclusive. White Walnut Coal Co. v. C. Coal & M. Co., 42 L. R. A. (N. S.) 673, note. In other words, a seller, having elected to recover on the purchase price, cannot thereafter change its remedy and seek the damages presented by the difference between contract and market price; and, vice versa, a seller who elects to recover damages cannot thereafter reehoose his remedy and seek the purchase price As I analyze this ease, the question before us is whether the evidence of this election is conflicting, and presents an issue for the jury. Bearing in mind that the seller (not the purchaser) is making the election, and his actions must be studied to determine what effeet shall be given to them, what do we find? Can there be more definite expression of an election than is found in plaintiffs’ telegrams of the 9th and 10th? Language can hardly be found which more definitely states plaintiffs’ position than its concluding telegram: “Refuse to accept your breach of contract. Insist upon performance. Will sue you for full purchase price. Goods being stored your expense.” These telegrams were followed by a bill for the full purchase price of the peanuts. If this does not conclusively establish an election on the seller’s part, from which no withdrawal was possible, had they so desired, the English language is deficient. But it is claimed that on the 19th of April, some nine days after the election had been made, the goods were placed in a warehouse in Seattle, and the warehouse company issued a receipt in the name of the plaintiffs, and this fact makes the issue one for the jury. But the election of remedies had been made by the telegrams of April 9th and 10th. The whole matter had been sealed by defendants’ reply letter, which ended with these words, “We confirm our wire of April tenth * * * which sets forth our position in the matter and hereby disclaim any liability in connection with these goods,” and which letter showed that plaintiffs’ telegram had been correctly transmitted. It-was not within the power of plaintiffs to make a new election thereafter. They did not desire to do so, or attempt to do so. They sent defendants a bill; then sued, not for damages, but for the purchase price. True, they notified defendants that they would store the goods at their (defendants’) expense. This was perfectly consistent with their election, made in the same telegram, “Will sue you for the full purchase price.” At no time did plaintiffs exercise dominion over, or assert title to, the peanuts after the date they elected to sue defendants for the full purchase price. Had. they done so, it would have been futile) in view of the eléetion previously made. But the peanuts were on the wharf at Seattle. Plaintiffs lived in San Francisco; defendants in Chicago. The peanuts had to be removed from the dock within 10 days of their arrival. They had been imported by plaintiffs, and therefore placed on the dock by the plaintiffs. The dock company knew no one in the transaction but the plaintiffs. Plaintiffs therefore ordered their removal to the warehouse. By no stretch of the im-. agination should this act be construed as impeaching plaintiffs’ election. The warehouse company knew no one in the transaction save the importer, who directed their removal to his warehouse. It therefore stated in its receipt, “Received in store from Kockos. Brothers,” etc. The warehouse company’s receipt was not an admission against plaintiffs, certainly not when, definitely and clearly, at the time plaintiffs made their election to hold defendants for the purchase price, they informed them that the peanuts would be stored at their expense. Moore & Co. v. Nathieu, 13 F.(2d) 747 . Defendants are hopelessly inconsistent in insisting that, because plaintiffs caused the peanuts to be placed in the warehouse, they cannot recover their purchase price, and in the next breath assert that they should be permitted to set off damages because plaintiffs, under the California statute, were required to act as bailees for hire, and condemn them for not placing the peanuts in a *197 cold storage building, as a bailee for hire would have done. Respecting the California Code and its bearing upon plaintiffs’ failure to store the peanuts in a cold storage warehouse, little need he said. Its application to a ease like this is not appreciated. The term “until delivery is completed” removes it as an applicable statute in this case. For defendants’ wires of the 9th and 10th both recognize a tender by plaintiffs and a refusal to- accept by defendants. Section 1748 of the California Code does not impose any duty upon seller after tender is made, and acceptance is finally and definitely refused. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6834666. Public record. Not legal advice.