Bollman v. Burt

Bryan, J., delivered the opinion of the Court. The appellee recovered a judgment against the appellant in the Court of Common Pleas, under certain rulings which will he stated. On the fifteenth day of January, 1880, the parties made a written contract with each other. It is in the following words: “I, H. B. Burt, agree to furnish W. Bollman two hundred tons anthracite pig iron to be equal in quality to Ashland Iron Company’s No. 2 and 3 foundry iron, delivered at the Patapsco Works, for the sum of ($37.00) thirty-seven dollars per ton, to he delivered in quantities of about eighteen tons per month; 1, W. Bollman, agree to take the iron as above specified as to quality and price.” ⁴²⁰ Burt was the proprietor of an iron furnace ; and Boll-man was the proprietor of an establishment known as The Patapsco Bridge and Iron Works, which required for its business considerable quantities of wrought and pig iron.

We mention the occupation of the parties, because in the exposition of contracts, it is important to consider not only the language employed, but also the surrounding circumstances. We can never know with entire accuracy the meaning of the contracting parties, unless for the time being we place ourselves in the position which they occupied, and view the facts as they then appeared, and consider the inducements which the parties had to make their bargain, and the purposes which they intended thereby to accomplish. On the day after the contract, was .made Bollman,wrote to Burt, and informed him that he had been awarded the contract for castings for the Water Department, and requested him to “book his order " for the two hundred tons of pig iron, and further said: “ You can deliver eighteen tons this month. I would like you to commence delivery as soon as convenient.” No deliveries of iron were made with the exception of two small parcels in March.

These were delivered on trial, and there was evidence in the case tending to show that they were not of the kind and quality required by the terms of the contract. There was also evidence of some vague and loose conversations between the parties on the subject of the deliveries. But we find no evidence of any fact or circumstance which tends to show a recognition of the contract by Bollman later than the month of March, The plaintiff in person testified that about the latter part of April, Bollman told him he considered the contract “ off.” On the twelfth of May he wrote a letter to Bollman, in which he stated that he was prepared to deliver iron for the month ending May the fifteenth according to the agreement of January the fifteenth. On the next day Bollman replied and stated ⁴²¹ that as no deliveries had heen made in January, February, March and April, he had considered the contract null and void, and had so informed him some time before, and that lie still so considered it.

Bollman by his contract was entitled to receive two hundred tons of iron, and to have it delivered at the times specified in the agreement. It was known to Burt that it was to be used for the purposes of Bollman’s business. In fact, the letter written the day after the contract was made informed Burt that it was required for the purpose of fulfilling a contract made by Bollman with the Water Department. The deliveries of iron were to be made in monthly instalments, and the parcels delivered were to he paid for separately; the payment for one portion not being in any way dependent on the delivery of any other portion.

In this respect the stipulations of the contract were clearly divisible, and a failure to make one delivery would not therefore necessarily affect the right and duty of the seller to make another, or the duty of the purchaser to receive and pay for another. According to the words of the contract the transactions of each succeeding month stand separate and apart from each other; and the duty of one party to deliver, and of the other to pay at each appointed time would not depend on what might have occurred in the past, or what might occur in the future. And yet it is most evident that such a construction would defeat the intention of the parties. If Burt had delivered for six successive months the instalments mentioned in the contract, and Bollman had failed to pay for any of them, it would not he just to require Burt to continue to make the deliveries, and to say to him that he had his remedy by an action at law.

Though the stipulations are independent of each other so far as the obligation to make payment is concerned, it is impossible to overlook the fact that Burt’s just expectations were that the purchase money should be paid with reasonable promptness, so that he ⁴²² might use the money in the prosecution of his business. We cannot suppose that he made this contract with the intention of binding himself to furnish the iron, and then having to wait an indefinite time for payment. Surely there is nothing on the face of the contract, or in the facts connected with the transaction, which would warrant such an inference. On the other hand, suppose that for six successive months Burt had failed to make any deliveries of iron, it would be equally unjust to say to Bollman that he was obliged to consider the contract in existence, and that his only remedy was by an action at law.

We cannot infer that he had any purpose in making this contract, except to obtain the iron to use in his business. In each of the cases supposed, the purposes of the contract would have been defeated, and the party not in default would have had a right to annul it. We do not hold that a mere failure or omission by Burt to deliver one instalment of the iron would, standing alone, have authorized Boll-man to declare the contract at an end; although under some circumstances, as will hereafter be seen, such might be the case. But_we think that repeated failures to make , any delivery would defeat'the purposes and objects of the contract, and that an action at law would not give an adequate compensation for such breaches.

One party would not be bound to acknowledge the existence of a contract, when the other party did not give him what he was entitled to receive under it, and when he could have no adequate compensation for what was unjustly withheld from him.