Lefferts v. Weld

Allen, J. The plaintiffs concede that, in order to fnake a good delivery, they must comply with the terms of the contract as to shipment. The first question, therefore, is as to the meaning of the contract. It may be assumed, as the parties themselves appear to have understood, that the shipment on the sailing vessel or vessels need not be made at Manila, and that the hemp might be sent by steamer to Hong Kong, to be there shipped by sailing vessel or vessels to New York; but we think the contract requires the shipment on the sailing vessel or vessels to be made during April or May. One object of the provision as to the time of shipment was to insure that the hemp should be on board the sailing vessel or vessels, in readiness for the voyage, within or during the time specified. The usual duration of the voyage by sailing vessel either from Manila or from Hong Kong was about the same. It may have been a matter of indifference from which port the vessel should sail, but the contract makes the time of shipment material. Shipping the hemp at Manila on board a steamer for Hong Kong would not accomplish the same purpose, because there might be a delay at Hong Kong. In point of fact, the steamer upon which the hemp was shipped at Manila did not arrive at Hong Kong till June 3, and was not shipped on board the sailing vessel till June 5. This was not a compliance with the contract on the plaintiffs’ part. Bowes v. Shand, 2 App. Cas. 455. The facts shown did not require a finding of a waiver on the part of the defendants. On July 15, 1893, the plaintiffs sent word to them that the hemp had been shipped from Manila to Hong Kong for transshipment to ship Iron Duke, but did not inform them of the date of the shipment on board the Iron Duke. If the plaintiffs had mentioned this fact, the defendants might have been called upon to make their objection immediately, if they intended to insist upon it. But, so far as appears, there was no further communication between the par [536] ties until the arrival of the vessel in New York, in February, 1894. It is found that in October, 1893, the defendants had reason to suppose that the hemp had been put on board the sailing vessel in June, though they did not absolutely know this until shortly before her arrival in New York ; just how long before is not stated. Under these circumstances, they were not bound, as matter of law, to volunteer a statement while the vessel was at sea that they considered the contract off, by reason of the plaintiffs’ non-compliance with its terms. After the arrival of the vessel was notified to the defendants, they promptly made their objection. It does not appear that they intended to waive any rights, or that the plaintiffs took or forbore any action in consequence of the defendants’ omission to make objection earlier. Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134. Parks v. Smith, 155 Mass. 26, 33. Holdsworth v. Tucker, 143 Mass. 369, 374. Judgment for the defendants.