Computel, Inc., a Florida Corp., Plaintiff-appellee, v. Emery Air Freight Corp., Defendant-appellant, 919 F.2d 678 (11th Cir. 1990)

Computel, Inc. and Comtrad International Corp. ("Computel"), the Plaintiffs-Appellees/shippers, were granted summary final judgment on a breach of contract claim against Defendant-Appellant/carrier Emery Air Freight Corp. ("Emery") in the amount of $38,625.21. The district court held that even when considered in the light most favorable to the carrier, Plaintiffs' special instruction that Defendant collect a cashier's check from a consignee was not a modification of the shipment contract. The court therefore concluded that Emery, in accepting the consignee's corporate check, breached the contract by failing to pick up Computel's specified form of payment. The court also found that Emery had failed to designate any material facts showing Computel's ratification of the breach under applicable Florida law. Although we agree with the district court that partial summary judgment was proper as to the existence of a contract between the parties to deliver the shipment on a cashier's check basis, we think there is a jury question as to whether Emery's conduct was ratified by Computel's subsequent unconditional deposit of the consignee's corporate check. Accordingly, we AFFIRM the district court's finding of breach by Emery of a contract for C.O.D. cashier's check delivery, but VACATE and REMAND the case for trial on the issue of ratification.

BACKGROUND

The facts of this breach of contract action are relatively undisputed by the parties. As the shipper, Computel contracted with Emery in Miami, Florida, for delivery of various computer goods to American Shop at Home, Inc. ("Consignee") in New York, New York. On December 23, 1988, Jose Fraga, the operations manager for Computel, telephoned Emery's service information number, 1-800-HI-EMERY. Fraga testified by affidavit that Emery's service representative told him that the carrier would deliver Computel's shipment to the Consignee and obtain a cashier's check for payment. According to Fraga, Emery's telephone representative instructed him to write "C.O.D. cashier's check" in the "Special Instructions" box of the pre-printed Emery Air Waybill, which he did.

Emery's driver subsequently picked up and accepted Computel's shipment for delivery. "C.O.D. Cashier Check" was written in the "Special Instructions" box of the waybill, and the sum of $34,669.74 was written in the "Check to Shipper" and "Declared Value" boxes. Emery delivered the shipment to the Consignee, and collected a corporate check payable to Computel, bearing the Consignee's name and address. Emery then delivered the check to Computel, who received, accepted, stamped and deposited the check unconditionally in its bank account. Computel's president, Claudio Osorio, did not discover that the check in question was not a cashier's check until the check was returned to Computel stamped "Account Closed." After receiving the dishonored check, Computel brought a multi-count action against Emery, essentially maintaining that the carrier failed to fulfill a contract to deliver computer products to a third party and obtain, in return, a valid cashier's check.

In answering Plaintiffs' complaint, Emery raised several affirmative defenses, including: a) Defendant was not a guarantor of collection; b) the parol evidence rule barred any oral written change to the printed contract; c) Defendant had no liability to collect anything more than a check or money order (an obligation which Defendant contends did not encompass collection of cashier's checks); d) Plaintiff accepted and deposited the check tendered by the consignee without protest; and e) the printed contract of the parties could not be altered. Emery also filed, in response to Plaintiffs' motion for summary judgment, an affidavit of Emery's Operation's Manager, Chuck McGinley, who stated that as a business practice of Emery, "CTS shipments do not include a provision for Emery to pick up a cashier's or certified check." McGinley also stated that " [t]he air waybill has a provision for Emery to ship CTS; however, no provision is included for C.O.D., or cashier's check delivery because Emery does not offer that service."

Upon review of Plaintiffs' motion for summary final judgment on its breach of contract claim, as well as the affidavits, pleadings, and memoranda filed in opposition by Defendant, the trial court granted Plaintiffs' motion and entered a final judgment of $38,625.61 for Computel. This appeal followed.

DISCUSSION

In an appeal from an order granting summary judgment, this court's review is plenary, and we apply the same legal standards as those that controlled the district court in determining whether summary judgment is appropriate. Hoffman v. Allied Corp., 912 F.2d 1379, 1382-83 (11th Cir. 1990); Thrasher v. State Farm Fire & Cas. Co., 734 F.2d 637, 638 (11th Cir. 1984). We therefore examine the record in the light most favorable to the party opposing the motion, and resolve all reasonable doubts about the facts in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986); Hoffman, 1382-83; Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990); Thrasher, 734 F.2d at 639. If "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact," summary judgment is proper and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986).

In ruling on Plaintiffs' motion, the district court found two issues of law presented by the pleadings: 1) Whether there existed a contract between Emery and Computel for Emery to deliver the shipment on a C.O.D. cashier's check basis; and 2) If such a contract indeed existed, whether Emery's conduct with regard to the contract was ratified by Computel's subsequent conduct in depositing the corporate check. The parties have accepted this consolidation of the issues; we consider each below.

I. The Breach of Contract Claim.

As the district court observed, the dispute as to the existence of a contract between Emery and Computel turns on whether Computel's instruction specifying a C.O.D. cashier's check payment was consistent with the terms and conditions of delivery, as expressed in Emery's service guide and pre-printed air waybill. Emery contends that the air waybill and Emery Service contract prohibit any modification of their preprinted terms by any Emery employee or customer, and that the instruction requiring Emery to obtain a cashier's check was an inconsistent, unlawful alteration of the carriage contract. We disagree.

Paragraph VIII, subsection 4 of the Emery service guide provides for Check to Shipper (C.T.S.) service:

THE FULL AMOUNT OF THE C.T.S. MUST BE PAID BY THE CONSIGNEE'S CHECK OR MONEY ORDER MADE PAYABLE TO THE SHIPPER. EMERY'S SOLE RESPONSIBILITY SHALL BE TO ACCEPT THE CONSIGNEE'S CHECK OR MONEY ORDER AND EXERCISE DUE CARE AND DILIGENCE IN MAILING IT TO THE SHIPPER. THE CHECK OR MONEY ORDER WILL BE MAILED TO THE SHIPPER WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT BY US. WE SHALL HAVE NO RESPONSIBILITY NOR LIABILITY WITH RESPECT TO PAYMENT OF THE CHECK OR MONEY ORDER. OUR CHARGE FOR THE C.T.S. SERVICE OR ANY OTHER CHARGE PAYABLE TO US MUST NOT BE INCLUDED IN THE CONSIGNEE'S CHECK OR MONEY ORDER PAYABLE TO THE SHIPPER.

It is true that according to the terms and conditions on the reverse side of the waybill, no employee or agent of the parties may modify the terms and conditions of the service contract. But we agree with the district court that "neither the Terms and Conditions in the service guide nor the air waybill indicate in any way that a cashier's check is excluded from the definition of 'Check or Money Order' as it pertains to [Emery's] Check to Shipper Service." (R1-25).¹ 

Indeed, Emery's own employee represented to Computel that Emery would deliver goods on a C.O.D cashier's check basis.²  Even when viewed in the light most favorable to the carrier, none of the affidavits submitted by Emery disputes that its telephone employee made such a representation, or that the representation is in any way inconsistent with the plain language of the service guide.³ 

After careful review of the record in the light most favorable to Emery, we agree that summary judgment on this issue was proper. The district court did not err in finding that there was a contract between the parties for the delivery of a shipment of computer goods on a cashier's check basis, and that Emery breached this contract in failing to pick up a cashier's check from consignee when it delivered the shipment.

II. Ratification.

The remaining question is whether Computel's subsequent behavior ratified Emery's breach: Did Computel, the principal, by accepting and unconditionally depositing the Consignee's corporate check, ratify its agent Emery's unauthorized acceptance and delivery of a form of payment other than that specified in the carriage contract? On this point, we disagree with the district court's summary judgment that no ratification occurred as a matter of Florida law.⁴ 

In United Parcel Service v. World Time Corp. of America, 556 So. 2d 1223 (Fla. 4th DCA 1990), the shipper World Time unconditionally accepted and deposited nonconforming certified checks that carrier UPS had collected from the consignee. In a brief opinion, the Florida appellate court reversed and remanded on three grounds, the third of which addressed "ratification by World Time corporation of United Parcel's acceptance of the certified checks":

World Time unconditionally accepted and deposited the checks with no notice to United Parcel that its acceptance was qualified by an attempt to mitigate damages or otherwise reserve rights to hold United Parcel liable if the nonconforming checks proved to be worthless. World time knew the terms of its C.O.D. instructions and was presumed to know the terms of the tariff but nevertheless deposited the checks, unconditionally. Such actions establish an unequivocal and binding ratification of United Parcel's acceptance of the checks.

556 So. 2d at 1224 (citations omitted).⁵ 

Applying World Time 's logic to the facts here, Computel certainly knew the terms of delivery, "C.O.D cashier check," that it specified in the "Special Instructions" box of the Emery airbill. It nevertheless deposited the Consignee's corporate check unconditionally into its account. "In actions such as this where a shipping customer sues his carrier for allegedly collecting an unauthorized form of payment, the vast majority of jurisdictions agree that ratification will be found where the shipping customer unconditionally deposits this unauthorized form of payment into its account, knowing that it deviates from the form of payment specified." Karat Gold Imports, Inc. v. United Parcel Service, 1989 WL 98764 at 5 (Ohio Ct.App. August 24, 1989); see, e.g., Comark, Inc. v. United Parcel Service, Inc., 701 F. Supp. 641, 646 (N.D. Ill. 1988); Mountain States Waterbed Distributors, Inc. v. O.N.C. Freight Systems Corp., 44 Colo.App. 433, 614 P.2d 906 (1980); Bond Rubber Corp. v. Oates Bros., 136 Conn. 248, 70 A.2d 115 (1949); Silver Creations, Ltd. v. United Parcel Service, 133 N.J.Super. 543, 337 A.2d 641 (1975); Rathbun v. Citizens Steamboat Co., 76 N.Y. 376 (1879); American Machinery & Motor Co. v. United Parcel Service, 383 N.Y.S.2d 1010, 87 Misc.2d 42 (N.Y.City Civ.Ct.1976); Compuknit Industries, Inc. v. Mercury Motors Express, Inc., 337 N.Y.S.2d 918, 72 Misc.2d 55 (N.Y.City Civ.Ct.1972); Chaning v. Riddle Aviation Co., 119 N.Y.S.2d 552, 203 Misc. 844 (N.Y.Mun.Ct.1953). That is, "the vast majority of jurisdictions have determined that the requirement of 'full knowledge of the facts' was satisfied where the evidence showed that the shipping customer was aware that the carrier had collected a variant form of payment." Karat Gold Imports, 1989 WL 98764 at 6 (emphasis supplied).

In this case, the ratification question centers upon the highlighted language above. One of the primary elements of the doctrine of ratification is knowledge of the material facts. Thus, Computel relies on a line of Florida cases articulating the well-settled rule that " [b]efore one may infer that a principal ratified the unauthorized act of his agent, the evidence must demonstrate that the principal was fully informed and that he approved of the act." United Parcel Service v. Buchwald Jewelers, 476 So. 2d 772 (Fla. 3d DCA 1985); Pedro Realty, Inc. v. Silva, 399 So. 2d 367 (Fla. 3d DCA 1981); Bach v. State Bd. of Dentistry, 378 So. 2d 34 (Fla. 1st DCA 1979); G & M Restaurants Corp. v. Tropical Music Service, Inc., 161 So. 2d 556 (Fla. 2d DCA 1964); Ball v. Yates, 158 Fla. 521, 29 So. 2d 729 (1946), cert. denied, 332 U.S. 774, 68 S. Ct. 66, 92 L. Ed. 359 (1974). See generally 2 Fla.Jur.2d Agency and Employment Sec. 52 (1979) (knowledge of facts by principal). In deposition testimony, the president of Computel, Claudio Osorio, stated that the checks that come into the company are simply stamped and processed by administrative employees who "don't have to qualify or evaluate the type of payments they receive."⁶  Because the check in question was processed by a ministerial employee "who was without knowledge that the check did not conform to the requirements of the contract," Computel argues that depositing Consignee's check was not a "fully informed knowing act of ratification." Brief of Appellees at 16-17. We disagree, at least for purposes of summary judgment.

In this case, the undisputed evidence established that Computel was the party who imposed the requirement of payment by cashier's check. See Mountain States, 44 Colo.App. at 436, 614 P.2d at 907. Further, the waybill in the record is clearly marked "shipper's copy." Knowledge of the "C.O.D. cashier check" requirement thus was apparently available to Computel's officers and employees in the shipper's files. See id. In addition, cashier's checks are clearly marked, and generally, a recipient is charged with knowledge when a check is not a cashier's or certified check. See id. The question here is whether the knowing ratification requirement of being fully informed at the time of affirmance, expressed in Buchwald Jewelers, limits the applicability of the analysis in World Time, which would otherwise suggest a finding of ratification. We do not think that Buchwald Jewelers presents a problem.⁷ 

Section 91(1) of the Restatement (Second) of Agency dealing with the knowledge of a principal at the time of affirmance or ratification is instructive, and expresses the principle articulated by the Buchwald Jewelers line of cases: "If, at the time of affirmance, the purported principal is ignorant of material facts involved in the original transaction, and is unaware of his ignorance, he can thereafter avoid the effect of the affirmance." Restatement (Second) of Agency Sec. 91(1) (1957). Specifically, comment e speaks to when a principal assumes the risk of lack of knowledge:

If the purported principal is shown to have knowledge of facts which would lead a person of ordinary prudence to investigate further, and he fails to make such investigation, his affirmance without qualification is evidence that he is willing to ratify upon the knowledge which he has. Likewise, if, learning that one who had no authority acted for him, he affirms without qualification and without investigation, when he has reason to believe that he does not know all the facts, it may be inferred that he is willing to assume the risks of facts of which he has no knowledge.

Id. Indeed, in Oxford Lake Line v. First Nat. Bank of Pensacola, 40 Fla. 349, 359-60, 24 So. 480, 483 (1898), the Supreme Court of Florida observed:

Generally speaking, it does not devolve upon the principal to make inquiries as to the facts. He has a right to presume that his agent has followed instructions, and has not exceeded his authority. Whenever he is sought to be held liable on the ground of ratification, either express or implied, it must be shown that he ratified upon full knowledge of all material facts, or that he was willfully ignorant, or purposely refrained from seeking information, or that he intended to adopt the unauthorized act at all events, under whatever circumstances.

(emphasis added); see also Gordon v. Pettingill, 105 Colo. 214, 218, 96 P.2d 416, 418 (1939) (full knowledge for purposes of ratification included that knowledge which "reasonable diligence would disclose," and principal's lack of knowledge cannot be established by showing that he was "ignorant of facts it was in his interest to know, and which, if awake, he would have known").

Claudio Osorio, the president of Computel, in effect testified that no one at the company analyzes the quality of incoming payments or the payments' conformity with prior instructions before they are deposited by administrative clerks. Osorio's awareness of such a structure for accepting incoming payments, considered in the light most favorable to Emery, could be found to reasonably imply that Computel intentionally refrains from checking incoming payments against the form of payment specified to its carriers. Computel appears to deposit checks unconditionally "whatever the circumstances." We believe that the above-mentioned authority suggests that Computel cannot specify one form of payment, set up a procedure whereby it is willfully ignorant of whether the incoming payment conforms with the company's original payment instructions (copies of which are presumably readily available in its files), unconditionally accept and deposit a varying form of payment, and then argue lack of knowledge when an unfortunate dishonoring or "bouncing" of payment occurs.⁸ 

Further, Florida case law acknowledges the general principle of agency law that knowledge of, or notice to an agent or employee is imputed to the principal when it is received by the employee within the scope of her employment, and when it is in reference to matters over which the employee's authority extends. Anderson v. Walthal, 468 So. 2d 291 (Fla. 1st DCA 1985). See generally 2 Fla.Jur.2d Agency and Employment Sec. 94 (1977).⁹  Thus, if 1) Computel's ministerial employees were on notice that cashier's checks differ from corporate checks; 2) if Computel kept Emery's waybill on file, i.e. possessed the means to easily verify whether the payments were conforming but, as Osorio's testimony suggests, chose not to do so; and 3) Computel nonetheless deposited the payments unconditionally, it seems that "full knowledge" could be imputed to Computel for ratification purposes. See also Comark, Inc., 701 F. Supp. at 646 ("Comark had knowledge of all material facts. It understood the nature and purpose of all the checks when it deposited them. It is clearly charged with knowledge of what kind of payment it had requested from UPS in each instance.").

At the very least, we think that when the facts and testimony are considered in the light most favorable to Emery, especially in light of World Time and the foregoing analysis, Computel's intent to ratify is a jury question not appropriately decided on summary judgment. Accordingly, the order of the district court is AFFIRMED in part, but VACATED and REMANDED for trial on the issue of ratification.¹⁰ 

JOHNSON, Circuit Judge, dissenting:

I agree with the panel's holding that Emery breached its contract with Computel. I cannot agree, however, with the panel's holding that Computel may have ratified Emery's action by simply depositing the non-conforming check. I therefore dissent.

As the majority observes, under Florida law, one asserting ratification must show that the principal accepted the agent's conduct "upon full knowledge of all material facts, or that [the principal] was willfully ignorant, or purposely refrained from seeking information, or that he intended to adopt the unauthorized act at all events, under whatever circumstances." Oxford Lake Line v. First Nat'l Bank of Pensacola, 40 Fla. 349, 24 So. 480, 483 (1898). The majority takes the position that, based on the deposition of Claudio Osario, Computel may have ratified Emery's acceptance of the non-conforming payment by remaining "willfully ignorant." Osario's deposition shows that he was aware that the office clerks at Computel did not analyze the quality of incoming payments or attempt to confirm the payments' compliance with prior instructions before depositing them. From this fact, the majority infers that Computel may have intentionally refrained from investigating whether its carriers complied with instructions regarding the form of payment the carrier was to accept. In my view, such an inference requires a long leap. Though it is possible to infer from Osario's statement that the system has the effect of keeping the company in the dark as to whether the carrier has performed as promised, I do not believe that we can also infer that Osario "willfully" or intentionally established this office procedure in order to insulate the company from an affirmative defense of ratification.

This long leap is especially troublesome because it goes directly against the language of Oxford Lake Line. That case states that "it does not devolve upon the principal to make inquiries as to the facts. He has a right to presume that his agent has followed instructions...." Id. This language clearly places the burden of showing that the principal remained "willfully ignorant" upon the defendant who asserts ratification as an affirmative defense. See also Bach v. Florida State Bd. of Dentistry, 378 So. 2d 34, 37 (Fla.Dist.Ct.App.1979) (stating that " [t]here is no duty imposed upon the principal to make inquiries as to whether his agent has carried out his responsibilities"). If we allow the fact that Computel's office procedure presumes that Emery has followed instructions to stand as the basis for a showing that Computel was "willfully ignorant," then we inappropriately shift this burden. I find no precedent in Florida law for such a shifting of the burden in an affirmative defense, even when viewing the facts in a light most favorable to the nonmovant on a summary judgment motion.

I would therefore affirm the district court's grant of summary judgment in favor of Computel.