Dorrance v. Barber & Co.

HOUGH, Circuit Judge (after stating the facts as above). [ 1 ] The agreement herein involved is accurately described as a contract for freight, if not strictly a contract of affreightment, and for present purposes there is no difference between the phrases. The contest before us is shortly, but sufficiently, stated by inquiring whether such a contract is a “mercantile contract,” as those words have been used in a long line of decisions of controlling authority. [491] Charter parties are mercantile contracts (Lowber v. Bangs, 2 Wall. 728, 17 L. Ed. 768), and so are contracts for the sale of chattels (Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366). If Dorrance, instead of hiring room in a large ship for 1,000 bales, of cotton, had chartered a small one to carry the same, the transaction would have been absolutely governed by the cases cited. We perceive no difference in principle between hiring a whole ship for the carriage of freight, and engaging room for a little freight in the same ship; both acts are the natural fruit of the same activities, normally pursued by men of the same environment and education, for the same purposes. Every reason assigned by Swayne, J., in the Lowber Case for putting charters in the class of mercantile contracts, and construing such contracts in the manner there authoritatively done, applies with equal force here, and we unhesitatingly hold this a mercantile contract. Such contracts are to be construed according to the intention of the parties, but that intention, when it comes to labeling or defining any particular stipulation as a warranty, or a condition precedent, or a representation, or an independent covenant, must be discovered from the instrument itself. This rule may at times involve plain men using hard words in some difficulty, but it insures that plain men using plain words will have their language enforced according to the meaning attaching to the words at the time they were written. The construction is to be irrespective of after-occurring events (Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885), and if the parties by plain words make that fundamentally important, which courts and juries subsequently deem immaterial and would like to disregard, it is not for them to substitute the wisdom of their hindsight for what they may regard as the folly of the parties (National Surety Co. v. Long, 125 Fed. 887, 60 C. C. A. 623, and cases cited). [2] It is not denied nor doubted that, when these parties wrote “January shipment from Galveston,” they meant that what Barber was to carry was cotton that had started on its journey in January. It is shown by evidence that the reason for this stipulation was to enable Barber to rely on arrivals in New York. We think the fact immaterial, if the phrase is both comprehensible without explanatory evidence, and to be regarded as a condition precedent or a warranty. That it is such condition or warranty we feel assured, because it may be regarded either as a stipulation in respect of time which is of the essence in contracts mercantile (Connell, etc., Co. v. Diederichsen & Co., 213 Fed. 737, 130 C. C. A. 251, and cases cited), or as a descriptive statement intended to be a substantive part of the contract, which is a warranty (Behn v. Burness, 3 B. & S. 751). The truth of this last interpretation is tested by asking whether, if no fire had occurred (the normal expectation), Dorrance would have dared to tender to Barber cotton that did not leave Galveston in January? That he would not is, we think, admitted, and is obvious at all events. Argument for appellant, as to construction of contract, really disregards the rule of Davison v. Von Lingen, supra, and relies on after-occurring accidents to control construction. The Bolton Castle did not and could not sail as contemplated, and long before her delayed de [492] parture other cotton was tendered; and, ¿o quote from a witness, “cotton is. cotton,” and this new tender would weigh as much and pay as much as if it had come from Galveston in January, instead of from, some other equally celebrated cotton center. The judgment, and especially the words of Lord Blackburn in Bowes v. Shand, 2 App. Cas. 455, disposes of a similar argument, if rice be substituted for cotton. The sum of the matter is that libelant warranted to respondent cotton of a particular description, that the description is in terms of time is accidental, and when (though without fault on his part) Dorrance failed to deliver the warranted article, he failed to fulfill the contract he had made. The doctrines of substantial performance and waiver have no application to this case. Waiver is always a voluntary act or the necessary legal result thereof, and is mainly a question of intention. FrankfurtBarnett Co. v. Prym, Co., 237 Fed. 21, 150 C. C. A. 223, L. R. A. 1918A, 602, and cases cited. Nothing but the fire is suggested as evidencing a waiver by Barber, and that certainly was neither intentional nor voluntary. [3] Substantial performance, as that phrase is correctly used, means not doing the exact thing promised, but doing something else that is just as good, or good enough for both obligor and obligee; and courts and juries- say what is good enough or just as good. The object (or one important purpose) of warranties and precedent conditions is to prevent (e. g.) our doing any such thing in this case. Decree affirmed, with costs.