Eppens, Smith Wiemann Co. v. . Littlejohn

Landon, J. The parties knew when they made their contract that, owing to the few sailing vessels leaving Padang, in Sumatra, for Hew York, a delay of some weeks or months might occur in making the shipment of coffee. As they fixed no tim$ for the shipment in the contract itself, the law required the shipment to be made within a reasonable time, and the burden was upon the plaintiff to show compliance in *191 this particular. (Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61.) What constitutes a reasonable time usually depends upon the circumstances of the particular case, such, at least, as the parties may be supposed to have contemplated in a general way in making the contract. (Stewart v. Marvel, 101 N. Y. 357.) The contract was made m New York February 8, 1893. The plaintiff shipped the coffee from Padang for New York November 18, 1893, a delay of nine months and ten days. A sailing vessel left Padang for New York laden with coffee and rattan March 30th, one May 4th, one Sept. 10th, and another November 7th. The plaintiff by its agents at Padang requested each of these vessels to take this coffee and the request was refused. The evidence given on the part of the plaintiff tends to show that this refusal was made through the influence of the plaintiff’s rivals in the coffee trade at that port, and the hostility of the charterers of vessels to one Matzen, the agent of the vendors of the coffee to the plaintiff, who acted for the plaintiff in trying to procure the shipment. The plaintiff now insists that there is no evidence that the delay in shipment was caused by prejudice or discrimination against itself or its vendors at Padang. A close examination of the testimony of the plaintiff’s witnesses — and there were no other upon this point — shows that it consists of their assuming, in explanation and excuse for the delay, that such prejudice and discrimination existed, instead of their stating the particular facts tending to show its existence. But the plaintiff cannot be heard to complain that this testimony was taken at the value at which it offered it; the excuse could be accepted as true, although insufficient. In making the contract it was undoubtedly expected by the defendant, and impliedly agreed by the plaintiff, that the latter was in a situation to secure a shipment by the first sailing vessel leaving Padang for New York, able to store and carry the coffee properly. A sailing vessel usually carries from 15,000 to 20,000 piculs, and the plaintiff’s shipment was of only 1,000 piculs. • *192 Matzen resided at Padang, and was a witness in behalf of the plaintiff. He testified that the shipment was delayed “ an uncommonly long time.” The plaintiff’s president as early as July 10th wrote to the plaintiff’s agent Pearson at Padang and characterised the delay as “ altogether unreasonable.-” This letter was objected to by the plaintiff, but it was clearly the plaintiff’s act in the matter of the shipment itself. There was much testimony tending to show the experience of the trade as to the time in which shipments from Padang had been made. Thus the jury could find that although the plaintiff made every reasonable effort to ship the coffee promptly, and did ship it at the first opportunity it could command, nevertheless the delay in the shipment was prolonged, not because of the conditions and circumstances of the shipping facilities themselves,-but because of the plaintiff’s personal inability to avail itself of them. The delay was, therefore, unreasonable as to the defendant, because uncommonly long, and made so by conditions peculiar to the plaintiff, and not to the transportation facilities. This personal disadvantage was not within the contemplation of the contract, and is not available to the plaintiff either to disprove unreasonable delay or to excuse it. (Adams v. Royal Mail Steam-Packet Co., 5 C. B. [N. S.] 492; Ellis v. Thompson, 3 Mees. & W. 445; Beebe v. Johnson, 19 Wend. 500; Arthur v. Wright, 57 Hun, 22; New Haven & N. Co. v. Quintard, 6 Abb. Pr. [N. S.] 128; Phillips v. Taylor, 17 J. & S. 318.) The plaintiff objects that the case was not tried upon the above theory. The trial court charged at the request of the plaintiff: “If the jury find upon the evidence that plaintiff made the shipment of this coffee upon the first vessel that would give the space for it, then plaintiff is entitled to a verdict.” “If the jury find upon the evidence that plaintiff made all reasonable efforts to ship this coffee promptly, taking into consideration all the facts and circumstances of this case, then plaintiff is entitled to a verdict.” *193 At the request of the defendants the trial court further charged : “ If the jury find that the failure of the plaintiff to obtain freight room for the shipment of coffee was due to a discrimination of charterers ' against them or their consignors in Padaug, that fact is not an excuse for the failure of plaintiff to ship the coffee within a reasonable time.” This portion of the charge modified the preceding ¡portions quoted above, and brought the case within the rules stated. The judgment for the defendants should, therefore, be affirmed unless some exception upon other grounds presents reversible error. The plaintiff urges that the defendants waived the delay in shipment by not objecting to it on or soon after August 16th, when the plaintiff notified the defendants, pursuant to the terms of the contract, of the name of the vessel upon which it intended to make the shipment. The plaintiff did not then notify the defendants when the vesssel would sail; one of the defendants testified that upon receiving the notice he supposed the vessel had sailed. On December 27th the plaintiff noti- . died the defendants of the marks of the coffees, and on December 30th the defendants repudiated the contract because of the delay. This was nearly two and a half months before the vessel arrived. It does not appear that the defendants delayed giving the plaintiff notice after finally deciding to repudiate the contract. A question of fact was thus presented, to be answered by inference from the circumstances. The jury could within the evidence answer it as they did in favor of the defendants. It was one of the defenses that in March, 1893, Lewis, the broker who had made the original contract for the plaintiff •with the defendants, made for the plaintiff a further agreement with them whereby the time for the shipment of the coffee from Padang was extended and limited to June 30th. The plaintiff urges that under the evidence in support of this defense and the instructions of the court, to all of which the plaintiff excepted, the jury might have found for the dofend *194 ants upon this ground and not upon the other.- We proceed to its examination. It will be observed that the first ground we have discussed rests upon the evidence of the plaintiff and seems to require a Verdict for the defendants, and thus to-eliminate reversibility for errors,' if any, upon the ground-now under consideration. That Lewis did assume to make in behalf of the plaintiff such further agreement with the defendants is settled by the verdict upon- conflicting evidence. The. only open questions are, did he have the plaintiff’s authority to do so, or did the plaintiff ratify the agreement after it was-made, or, apart from the agreement, did plaintiff acquiesce in the defendants’ construction of what would he reasonable time ? The plaintiff sent Lewis to the defendants to ask their permission to ship the coffee via Singapore by steamship-instead of by sailing vessel direct from Padang. This would obviate or lessen the delay in shipment, hut the defendants, refused the request because steam transportation might injure the quality of the coffee. Lewis had no other or further-express authority from plaintiff; whether he had ostensible-authority we do not think it necessary to decide. The evidence is that the defendants upon making this extension or limit of time mailed a letter addressed to the plaintiff stating their refusal to accept steam transportation via Singapore, and adding, “We grant an extension of time of shipment to June 30th, 1893.” This letter bears date March 20th. The. plaintiff’s president denies the receipt of the letter, but the-plaintiff had other agents who might have received it. On March 21st, however, the plaintiff, by its president, wrote to-its vendors in Padang that the shipment must be by sail, as no other way would be satisfactory to the vendees in Hew York. The question of the plaintiff’s receipt of the letter was for the jury. (Austin v. Holland, 69 N. Y. 571; Oregon Steamship Co. v. Otis, 100 N. Y. 446.) The plaintiff made no response to the letter. The letter informed the plaintiff 'of the result of the‘mission upon which plaintiff had sent Lewis to the defendants, and if that result was not satisfactory, the plaintiff should have promptly repudiated it. • *195 But apart from the question of agency, the plaintiff, through Lewis, asked the defendants a question affecting the method of shipment, and involving the question of. its time. The defendants answered the direct question, and then stated their disposition of the involved question of time. The answer was their understanding of the limit of reasonable time required by the contract. If it was not also the plaintiff’s, it was its duty to say so. If the letter had proposed an alteration of the contract, the rule might be different, but it assumed to give it a fixed meaning consistent with its terms, a meaning apparently favorable to the plaintiff, a meaning to which the plaintiff, without any response, could hold the defendants, and, therefore, to which, in the absence of a response, it should itself be held. ' The defendants gave evidence to the effect that Lewis, when he made the contract with them in February) stated that he had no doubt the shipment would be made in February — March. The trial court charged the jury that if they found that Lewis made that statement, the jury might consider it in determining what was a reasonable time within which the shipment was to be made. That was not error. There is no question about the authority of' Lewis to make the statement. (Mayer v. Dean, 115 N. Y. 556.). One test of reasonable time is the time within the contemplation of the parties in making the contract; if they- then talked it over and understood it alike, while that fact would not fix the exact limit, it would show about what they understood it would be. If Lewis had. then said it would probably be twelve months before the shipment could be made, the plaintiff would have sought to show it. In either case the evidence would not vary the contract, but would show its meaning as the'parties understood it. (Ellis v. Thompson, supra; Wharton on Contracts, sec. 882.) The judgment should be' affirmed, with costs. Pabkeb, Ch. J.,. O’Bbien, Babtlett, Haight, Yann and Cullen, JJ., concur. Judgment affirmed.