Davis v. Columbia Coal Mining Co.

Lathrop, J. The contract upon which this action is brought is not an absolute contract, by which the defendant agreed to deliver the coal free on board at Greenwich, Philadelphia, at a particular time, but, as the judge who tried the case in the court below has found, is subject to certain conditions, namely, that the defendant was not to be responsible for loss of coal era route, nor for damages from delays in transportation, strikes, or causes beyond the defendant’s control. The evidence shows that the coal had not "reached Greenwich, but was en route on the road of the Pennsylvania Railroad Company when that company seized it, and consumed it, there being at the time a great scarcity of coal caused by a serious strike at the mines. The coal was thus lost to the defendant, by a cause for which, by the terms of the agreement, the defendant was not to be responsible. While the defendant afterwards was paid by the Pennsylvania Railroad Company for the coal the same price which the plaintiffs had agreed to pay for it, we do not see that this has any bearing upon the case. Nor do we see that the defendant was under any obligation to furnish another cargo of coal under the contract. Where a contract is made by which the seller of goods agrees to deliver them free on board at a certain place, it is ordinarily the duty of the buyer to furnish a vessel, and the seller is under no obligation to act if the buyer does not procure the vessel. Armitage v. Insole, 14 Q. B. 728. Sutherland v. Allhusen, 14 L. T. (N. S.) 666. Dwight v. Eckert, 117 Penn. St. 490. Hocking v. Hamilton, 158 Penn. St. 107. In the present case it was no part of the contract of the defendant to furnish a vessel, although, acting for the plaintiffs, it attempted to procure one at the rate of freight to which it was limited by the plaintiffs, but did not succeed. On May 7, three weeks after the order was given, the freight limit was raised by the plaintiffs, and the defendant, on May 10, was able to procure a vessel, and was then informed — 397 — that the coal had been seized. On May 16, the defendant was informed that the coal had been consumed, and this fact was communicated to the plaintiffs. It does not appear from the bill of exceptions that any request was afterwards made by the plaintiffs of the defendant to ship another cargo under the contract, or that anything further was done in regard to it. Both parties apparently considered the matter at an end. It also seems to us clear, on the evidence, that the performance of the contract was prevented by a strike; and we see no reason why the word “ strikes ” should be restricted so as to apply merely to the case of a strike at the defendant’s own mines. ' It is broad enough to include any strike having a legitimate tendency to prevent the execution of the contract, if the defendant was in the exercise of due care and diligence. See Milliken v. Keppler, 4 App. Div. (N. Y.) 42; Delaware, Lackawanna, & Western Railroad v. Bowns, 58 N. Y. 573. We see no ground upon which the defendant could be held liable. jExceptions sustained.