Salmon v. Boykin

Robinson, J., delivered the opinion of the Court. This is an action brought by the appellant, the seller, on a contract for the sale of 573 tons of kainit. The con — 546 — tract of sale, was made through a broker, and reads as follows:— “J. H. Cottman, Broker in Chemicals, Dye-stuffs, Brimstone, &c., Baltimore.” No. 3364. “"Baltimore, Oct. 8th, 1883.” “ Sold to Messrs. Boykin, Carmer & Co. (Balto., Md.), for account of Mr. Hamilton H. Salmon (New York), about four hundred to five hundred tons raw kainit, German, test not less than 23 per ct., for shipment from Germany to Wilmington, N. C., during October or November, 1883, at $9.25 per ton, 2,240 lbs., invoice weight, ex-ship in bulk at Wilmington,' payable cash on arrival of vessel; seller has option of shipment from New York out,of vessel sailing from Germany, not later than November, 1883, if direct shipment unobtainable ; in either case selle r to give buyer name of vessel from which he proposes making delivery, as soon as received by him. (Signed), J. H. Cottman.” Duplicates of the contract were sent to the appellant and appellees, and were endorsed “ accepted ” by them respectively. In pursuance of the contract, the appellant through his correspondent, shipped from the Port of Stettin, Germany, in November, five hundred and seventy-three tons of crude kainit, answering the description given in said contract, on the barque “ Ala,” for Wilmington, N. C. And immediately on receipt of the bill of lading, he'declared to the appellees the name of the vessel, stating at the same time, that seventy-three tons more had been shipped than required by the contract. The appellees agreed to take the 13 tons extra, and the original contract was in this respect modified. The “ Ala ” sailed from Stettin about 13th November, and on the 19th December, being leaky, was obliged to put into Arendahl, Norway, for repairs. On February — 547 — 4th, she again sailed for Wilmington, hut on the same day put into Egersund, again leaking, whence she was towed back to Arendahl for repairs. These being completed, by the direction of the underwriters only 200 tons were reloaded in the “ Ala and three hundred and eight tons were transhipped to the “ Amykos,” a vessel chartered for the purpose, and neither vessel being able to bring the balance of the .cargo, about sixty tons, it was left behind. Both vessels arrived at Wilmington — the “ Ala ” on the 16th June, after a voyage of seven months, and the “ Amykos ” on the 23d of the same month. The voyage from Stettin to Wilmington is ordinarily from sixty to ninety days. The appellees having refused to accept the kainit, it was sold on their account, and this suit is brought to recover the difference between the net proceeds of sales and the contract price. In support of the action, the appellant contends, 1st. That the contract of October 8th is an absolute sale of the kainit whereby the title passed at once to the appellees ; and 2dly. If it is to be construed as an agreement to sell, •all the conditions precedent to complete the sale were performed by the appellant. The contract before us is a mercantile contract for the •sale of goods to be shipped from a foreign port, and •although the language used is “sold, &c.,” yet the contract shows that it was a sale on conditions. The shipment was to be made within certain specified months, and the kainit was to be of a certain quality, and the name of the vessel was to be declared so soon as it was known to the appellant. By the very terms of the contract, these were conditions precedent to be performed by the appellant, before he could sue for a breach of the contract. If he failed to ship the kainit within the time specified — if it was not of the quality prescribed, or if he did not declare the name of the vessel so soon as it was known to him, the failure of these or any one of these conditions, released — 548 — the appellees from liability. This we take to be well settled law. In Bowes vs. Shand, L. R., 2 App. Cases, 455, the suit was brought on two contracts which read as follows:— “ We have this day sold for your account to Bowes, Martin & Kent, the following Madras rice to be shipped at Madras, or coast, for this port during the months of March and (or) April, 1814, about (300) three hundred tons, per Rajah of Cochin.” Part of the cargo of rice was shipped in February instead of" March and (or) April as specified in the contract. In an action against the purchaser for-refusing to accept the cargo on arrival of the vessel, the House of Lords held that the action could not be maintained, because the meaning of the contract as apparent upon its face, was that all the rice must be shipped in March or April. Lord Chancellor Cairns said : “ It is a mercantile contract, and merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance. If it be admitted that the literal meaning would imply, that the whole quantity must be put on board during a specified time, it is no answer to that literal meaning, it is no observation which can dispose of, or get rid of, or displace, that literal meaning, to say that it puts an additional burden on the seller, without a corresponding benefit to the purchaser; that is a matter of which the seller and the purchaser are the best judges. Nor is it any reason for saying that it would be a means by which purchasers without any real cause would frequently obtain an excuse for rejecting contracts when prices had dropped. * * * What is sold is not three hundred tons of rice in gross, or in general. It is three hundred tons of Madras rice, to be put on board at Madras during the particular months. * * The plaintiff who sues upon that contract, has not launched his case until he has shown that he tendered the thing which has — 549 — been contracted for, and if he is unable to show that, he cannot claim any damages for the non-fulfilment of the contract.” Lord Blackburn said: “But the parties have chosen for reasons best known to themselves, to say: ‘We bargain to take rice, shipped in this particular region, at that particular time, on board that particular ship.’ ” Here the appellant was bound not only to ship the kainit within the specified months, but also to declare the name of the vassel, and to do so as soon as it was known to him. This was expressly decided in Buck vs. Spence, 1 Camp., 329, where the seller agreed to sell a certain quantity of ñax to be shipped from St. Petersburg and was bound to declare the vessel, as soon as it was known to him. The vendor received the information as to the vessel on the 12th of September in London, and did not communicate it to the defendant who resided at Hull until the 20th. The vessel arrived in October and the defendant refused to accept the flax. The Court held that the declaration of the vessel to the defendant was a condition-precedent, and that it bad not been complied with, and that the question whether or not the declaration made eight days after receiving the information was a compliance with the condition was one of law and not of fact. If then the shipment of the kainit within the months specified, and the declaration of the vessel by which it was shipped, were conditions precedent to be performed by the appellant, the contract of October 8th, was not, it is clear, an executed contract, whereby the title to the kainit passed to the appellees. - It was but an agreement to sell on certain conditions, and the question is whether these conditions have been performed so as to entitle the appellant to sue the appellees for the non-acceptance of the kainit. The proof shows the kainit was shipped in proper time, and of the quality contracted for, and the name of the ves — 550 — .sel was duly declared. All these conditions have been complied with. The obligation on the part of the appellees was to pay for it on the arrival of the vessel. Whether the contract is to be considered as a contract for the sale of goods “to arrive by,” or “on arrival by,” or “expected to arrive by” a certain vessel named, and to be construed subject to the double condition of the arrival of the vessel, and the arrival of the goods on board of that particular vessel, is a question not necessary for the decision of this case. Be this as it may, the appellant did agree to sell to the appellees 573 tons of kainit to be shipped from a. foreign port, and before he can sue them for non-acceptance of the cargo, he must show that he was ready and offered to deliver the quantity he agreed to sell. If he offered to deliver a less quantity, the appellees were not-bound to accept it. As was said by the Supreme Court in Norrington vs. Wright, 115 U. S., 288, “The seller is bound to deliver the quantity stipulated, and has no right, either to compel the buyer to accept a less quantity or require him to select part out of a greater quantity.” This well settled principle is fully recognized and adopted in Dixon vs. Fletcher, 15 Mees. & Wels., 85; Nicholson vs. Guardians of Bradfield Union, L. R., 1 Q. B., 620; Oxendale vs. Wetherell, 9 B. & C., 386, and Waddington vs. Oliver, 2 Bos. & Pul., N. R., 61. And in the still later case of Reuter vs. Sala, L. R., 4 C. P. Div., 239, where the contract was for the sale of twenty-five tons, more or less, Pénang black pepper, October and (or) November shipment from Penang to London, the name of the vessel to be declared within sixty days from date of bill of lading. Eive tons of the twenty-five, were not shipped within the months specified, and although the vessel arrived with twenty-five tons of pepper on board, the purchaser refused to accept either the twenty-five tons, or the twenty tons which had been shipped within the months specified. In an action by the seller to recover — 551 — damages for the non-acceptance of the pepper, the Court held that the purchasers were not bound to accept the twenty tons, hut were entitled to insist upon the delivery of the twenty-five tons according to the terms of the contract. Thesiger, L. J., said: “The argument before us has been mainly directed to the question whether the plaintiffs can maintain this action in respect of the twenty tons. I am of opinion that they cannot do so. The subject of the contract is the sale of a specific quantity of a given article, with a margin for a moderate excess in or diminution of that quantity under the words “about” and “more or less.” “The rule applicable to such a contract, if it were not qualified by other provisions, would be that subject to the moderate margin, the sellers cannot call upon the buyers to accept any greater or less quantity of the article bargained for than the specified quantity. In the present case, if the five tons shipped, or declared too late, be excluded, the diminution in quantity is clearly beyond the margin.” In this case, the contract was for the sale of five hundred and seventy-three tons, and the appellant offered to deliver five hundred and eight tons, two hundred tons by the “Ala” and three hundred and eight tons by the “Amykos.” The appellees were not bound to accept this delivery. They had the right to stand on the very terms of the contract, and it is not for us to speculate as to the reasons and motives by which they are governed. In contracts of this kind, parties may qualify to some extent the quantity by “more orl ess,” or “about,” or by words of like import, or they may stipulate in precise terms what excess or diminution shall avoid the contract. In the absence of a stipulation of some kind to the contrary, the seller must deliver, or offer to deliver goods in the quantity and of the quality contracted for. In dealing with this case, we have considered the contract for the five hundred and seventy-three tons, as in — 552 — full force between the parties. The appellees it is true, wrote to the appellant in February, stating that the delay in the arrival of the vessel, would prevent their taking more than the original contract. But to this the appellant refused his assent and insisted they should take the five hundred and seventy-three tons. The contract was not, therefore, rescinded. Taking this view of the case, it is unnecessary to consider the several questions presented by the other exceptions. (Decided 4th February, 1887.) Judgment affirmed.