Williamson v. Dillon

Martin, J. delivered the opinion of the court. This was an action instituted to recover damages for the nonperformance of a covenant entered into between the parties on the 25th of January 1817, in the following words, (and which was signed and .sealed by them:) — “Memorandum of an agreement entered into on this 25th day of January 1817, between Moses Dillon, of Zanesville, state of Ohio, and David Williamson of Baltimore, state of Maryland, whereby the said Moses Dillon obligates and binds himself to deliver to the said Williamson, or order, at Zanesville, two hundred and fifty barrels of flour, not less than one-third of same flour to pass as fine quality, the remaining two-thirds of superfine, to be at said place by the first day of March next, to be lined and in good shipping order; and to deliver on the 15th of same month, two hundred and fifty barrels of flour of same quality as the first mentioned quality, and in like order, to the said Williamson, or order, at the above named place, for which flour, on its delivery as above, the said David Williamson, Jr. binds and obligates himself to pay to the said Moses Dillon, or order, the sum of seven dollars per barrel, for which flour payment will be made to the said Dillon with his bonds passed to Luke Tientan and Kennedy Owen, of Baltimore, interest being added in said bond to the day of the delivery of said flour, at the par of exchange. In testimony,” &c. In the trial of this cause, many exceptions were taken to opinions given by the court below; and without fallowing the regular orfler, in which they appear, we will décide the points' — 463 — that arise in them, and then apply the law to each exception respectively. The true construction of this contract is the first question te be examined. That the intention of the parties making a contract is to be regarded, and when practicable, carried into effect, is a fundamental rule in the construction of contracts. Where the agreement is in writing, and an ambiguity appears, not on the face of the paper, you may have recourse to extrinsic evidence to aid in its construction; but where its language is clear and explicit, the instrument must bo construed according to its plain import and terms. In this case we see no ambiguity, and we think the agreement, on the face of it, clearly points out the intention of the parties contracting The contract is for the delivery of a certain quantity of flour, of a particular quality; to be delivered — where? The contract expressly states, at Zanesville. When was it to be delivered? It is equally explicit that the first 250 barrels were to be delivered on the 1st of March 1817, and the remainder on the 15lh of the same month, and Williamson stipulated that he would pay for the said flour seven dollars a barrel, on its delivery as aforesaid. But the flour, thus to be delivered on the 1st and 15th of March at Zanesville, was to be of a particular quality, and the agreement points out the evidence by which the. quality shall be ascertained; it shall be such flour as will pas& inspection, &c. The inspection was no part of the contract, as it related to the time or place of delivery, but only the evidence or test by which it was agreed the quality of the flour should be ascertained. Suppose on the day after the flour was delivered, Williamson, under an impression that it was not of such quality as was specified in the contract, had instituted a suit against Dillon, can it be doubted that such suit could be sustained, although the flour had not then been inspected, if afterwards, upon inspection, it would not pass? The moment the stipulated time for the delivery of the flour had passed, the contract was either performed or broken, and it was only necessary to carry it to New-Orleans, or any other place, for inspection, to furnish evidence of its quality. With this explanation of the contract we are next to enquire — 464 — tit whát time and place the price of flour was to be the measure of damages; and with this view, it is necessary to consider, not only what the contract is, but what it is not. It is not a. contract for the delivery of stock, and therefore the case of Downes vs Back, 2 Serg. & Lowb. 407, and the case of M‘Arthur vs Lord Seaforth, 2 Taunt. 257, do not apply to it. By this contract the price was to be paid when the flour was delivered. It is not for affireightment, and, therefore, not within the doctrine laid down in Bracket vs M‘Nair, 14 Johns. Rep. 170, and Amory vs M‘Greggor, 15 Johns. Rep. 24, even if the authority of those cases had never been questioned; nor is it a contract for the sale and delivery of articles where no time or place is specified for the delivery, as in Bridge vs Wain, 2 Serg. & Lowb. 486. These are cases decided, upon principles not applicable to the one now before us, and we look in vain to them to aid. us in forming a correct opinion in this case. It is believed that- no case, can be found where there was ars agreement to deliver a specific article at a particular time and, place, and the money to be paid at the time of delivery, that the value of that article, at the time and place of delivery, was not considered the measure of damages, unless where the contract showed it was for a particular purpose, and special damages were laid in the declaration. In Chipman on 0071-tracts, 121, it is stated, “If property be sold at a particular price, to be delivered at a future day, and in the meantime the property rise, the purchaser is entitled to the rise of property; and if the property be not delivered, the value of the property, at the túne and place of delivery, is the measure, of damages.” And in Shepherd vs Hampton, 3 Wheat. 200, “It Was the unanimous opinion of the court, that the price of the article, at the time it ivas to be delivered, is the measure of damages.” See also the case of Leigh vs Patterson, 4 Serg. & Lowb. 204. Gainsford vs Carroll and others, 9 Serg. & Lowb. 204, and Cannell vs M‘Clean, 6 Harr. & Johns. 297. The same rule, we think, will apply, where the damages are claimed, not for the nondelivery of the article, but for the delivery of ah article of a different quality from that contracted to be delivered. The difference of price, at the time andplacp — 465 — stipulated for the delivery between the article delivered and that contracted for, is the measure of damages. The case of Gilpins vs Consequa, 1 Peters’ C. C. Rep. 86, sustains this position. That was an action brought to recover damages for the nondelivery of teas, of the quality contracted to be delivered, by Consequa, the defendant, to the supercargo of Gilpins. Consequa stipulated to deliver at Canton a cargo of tea for the Pennsylvania Packet, to he fresh, prime, and of the first chop. The tea was delivered, and carried first to Philadelphia, and afterwards to Amsterdam, where it was sold at public sale, according to the usage. From a comparison of the sales, it appeared these teas sold for less than some other teas of the same kind, which was attributed to their being of inferior quality. Judge Washington charged the jury, that as the contract was to deliver teas at Canton of a certain quality, they would consider the sales at Amsterdam, and the comparison of them with those of other teas, not as furnishing the amount, but the rate of loss; and having ascertained the rate, to apply it to the prices of the same articles of first quality at Canton, when these teas were delivered. And the learned judge, in illustration of this doctrine, stated — -“If a man contract to deliver a quantity of flour, for instance, by a particular day, and fails, or deliver it of a quality inferior to that stipulated for, all that can be claimed from him in the first case, is thé price of such flour at the time and place when and where it was to be delivered; or in the'second, to make up the difference in quality.” In the case of Willings & Francis vs Consequa, 1 Peters’ C. C. Rep. 176, the doctrine laid down in the first ease is recognized and adopted. Speaking of the rule in Gil-pins vs Consequa, the Judge says, “with this rule the court finds no cause to be dissatisfied; and the reason of it is obvious, the contract is to deliver teas of the best quality at Canton; if it be not complied with, the price of such teas, at that place, is the just measure of the damage sustained by the plaintiff.” But it is thought this rule, to ascertain the damages, will not afford to the plaintiff ample justice; he ought also to recover the amount of expenses necessarily incurred in transporting the flour to New-Orleans for inspection. The answer is, such was not the contract. If that had been a stipulation between tfee — 466 — parties, it should be found in the agreement. In its "absence, this court can only act upon the contract as they find it, and apply to such contract the general established principles of law. The next question is, whether the testimony offered by the plaintiff was admissible for that purpose? Through the whole trial of this cause, the court of Baltimore county seems to have acted under the impression that no testimony was admissible to prove the relative price of flour at Zanesville, unless it was direct, positive proof, from a witness, who knew the value at that place) and that in the absence of such positive proof, the jury could not be permitted to establish that fact, by any other testimony! In this, wC think the court erred. The evidence offered is not, as was contended, secondary evidence-. It is of the same grade with that required by the court, although perhaps of a less conclusive character. Where testimony is offered, which of itself shows there is other evidence of a higher character, it is secondary evidence; as in the case of a written agreement-^-the Copy is not admissible, until you first show the original cannot be had; because the copy of itself clearly proves, there is evidence of a higher character, which ought to be produced, unless its absence is accounted for. Not so, where the testimony is of the same grade, although it may not have an equal effect with the jury. The object to be attained in this case, was the relative value of flour at Zanes«■ ville, between that delivered, and that contracted for; and this might be proved either by a witness who knew the price of each kind of flour at Zanesville, or by showing the value at different places, by which the jury could judge of its relative value at Zanesville. The testimony, therefore, offered by the plaintiff, of the price of each kind of flour at New-Orleans, Marietta, and other places, was admissible, and ought to have been given to the jury. The evidence offered in the fifth bill of exceptions was hearsáy, and, therefore, properly rejected by the court. Some difficulty arises in forming a decision on this exception from the ■ want of care in taking down the evidence. The witness, after stating that “he had purchased flour at Zanesville in the spring of 1817, and paid for it from six to eight dollars a barrel, and .that, he had paid for the freight of flour from Zanesville to — 467 — New-Orleans two dollars per barrel,” said, that all the information he had as to the purchases and prices was derived from his brother and partner; hut it is not distinctly mentioned whether the prices spoken of related to the price of flour alone, or was intended to include the price of both flour and freight from Zanesville to New-Orleans. From a comparison of the several parts of the testimony, we are led to the conclusion, that his knowledge of both was derived from the same source. He was not in the Western Country in the spring of 1817, nor did he make the purchases himself, but the whole business was transacted by his brother and partner. The court were also right in not receiving the testimony in the sixth bill of exceptions. Maunse.l While, the witness, stated, “that he was called on in the spring of the year 1817, by Richard Relf, to state the difference usually- allowed on the sale of flour between superfine, fine, common and middling; that he then stated the difference was as follows,” &c. This might be true, and yet he might have no knowledge of the facts. He only swears he made the statement to Relf, hut he does not -swear that statement was true, or that he either then knew, or ever did know, the facts to be as he stated them to Relf The testimony offered in the seventh bill of exceptions was hearsay, and,, therefore, liable to the same objection with that contained in, the fifth. That part of the evidence in the eighth bill of exceptions that relates to the price of flour in New-Orleans in 1817, and that which was offered to prove there was no public inspection at Zanesville, at o-r before the time mentioned, ought to have been received; the residue of the testimony mentioned was properly rejected. The price of flour in 1811 and 1819, could not afford a correct standard to show its value in 1817. We concur in the opinions given by the court below, in the first, fifth, sixth, and seventh bills of exceptions, and dissent from those in the second, third, fourth, eighth, and ninth bills of exceptions. Dorsey, J. dissented from the opinions of the court below iu the first, third, and fifth bills of exceptions. JUDGMENT REVERSED, AND PROCEDENDO AWARDED.