Cheney v. Eastern Transportation Line

Irving, J., delivered the opinion of the Court. This is an action of replevin brought by the appellee against the appellants- to recover the hull and masts of the steamship Falcon. The undisputed facts are as follows: The vessel was lying at Baltimore, and Frederick Robert, President of the Eastern. Transportation Line, went to Baltimore to examine the boat; there he met Perretz, the agent of the owners, Messrs.

Winternitz & Sons, with whomhe went to examine the hull, which was a wreck. Perretz named a price which Robert declined; and, on being asked to make an offer, Robert offered $400.00. Perretz then took him to the owners, and he there said to the owners: “ Gentlemen, I will give you $400.00 for that hull delivered in Baltimore,or $500.00, delivered in New York; I am in no particular hurry for the hull and will give you until the 15th of February to deliver it.” They then talked of the machinery and telephoned somebody to know what it would cost to take it out and store it, when, as it was nearing train time, Robert said he was going, “and if he found a letter on his desk next morning accepting his offer of $400—-he would leave the offer open till that time—he would take it.” During the examination of the hull, Robert told Perretz, if he purchased the hull, he should cut off all above the upper deck. On their way to the train, (to which Perretz accompanied Robert), Perretz asked Robert if he cut the vessel, down “will you let me ⁵⁶² have the wood off her;” and Robert said, “yes, certainly.

I don’t want it.” Perretz then asked Robert if he docked the hull could he, Perretz, take out the shaft and wheel, Robert replied, that he would have the vessel on the dock probably 48 hours, and if Perretz had it taken out in that time there should he no charge. This was on the 14th of December, 1880 ; and on the next day Robert received the following letter, dated Baltimore, Dec. 14th, 1880. “ Frederick Robert, Esq., President Eastern Transportation Line, Jersey city, Dear Sir:—I have concluded of accepting your offer on the hull of Falcon, at $500, New York, or $400 here, to he delivered, until the 15th of February, the latest; that all the off fall from said hull, above the barch line to go to Charles Winternitz & Sons, and that if delivered here, while forty-eight hours on the dock, you will allow me to take such machinery out of her hull, that I can’t while lying in her present place. If you agree to these terms, please reply, the money to he paid as soon as the transfer is effected. To your worthy name, hoping these lines will find you in best of health, I am very respectfully, yours, T. B. Perretz.

P. S.—Should you learn of any one that would purchase boiler and engine, refer them to me. Answer me, please, at your earliest convenience.” • To this letter Robert replied as follows: “New York, Dec. 15th, 1880. My Dear Sir:—Your esteemed, favor of the 14th inst. is at hand accepting my offer for the hull of the steamer Falcon. I understand the barch line mentioned in your letter to he that of the main deck, and that the masts go with the hull.

I will request Mr. Bolander to draw up the usual contract for us, it is part of his business, and he can make n,o extra charge for the same. The terms I understand to he cash on delivery, either in New York, or Baltimore. With regards to Messrs. Winternitz & Sons, I am yours, truly.” Fred.

Robert, Pres’t. Mr. T. B. Perretz, Baltimore, Md. ⁵⁶³ In reply to this was another letter from Perretz as follows: “ Baltimore, Dec. 16, 1880. Frederick Robert, Esq., President Eastern Transportation Line, Few York. Dear Sir:—Yours of the 15th inst. to hand, contents carefully noted, hoping that I have not asked anything that is of any value to your company.

I understand from you that all the broken part should be cut off; that is what I ask for fire wood for some of our laborers; and if any small amount of all (old) iron you will certainly not take it with ,you to Hew York, there is hut little of it. I have mentioned these facts to Mr. Bolander. The masts belong to the barch, of course. With best regards from my folks, as well as from me, I am yours, very respec'y.” T. B. Perretz.

To this Mr. Robert replies, “ Few York, Dec. 16, 1880. Dear Sir:—Yours of the 15th is at hand and contents noted. We are perfectly willing you should cut off and retain the wood and iron on hull of Falcon, above the main deck, only stipulating if you take any that you take all off. If in doing this the hold of the masts to the hull is too much wrecked to be safe, I will receive them laid on the deck.

Yours, truly.” Frederick Robert, Pres’t. P. S.—I think you had perhaps better leave the stem and-standing for about four feet above the deck. F. R. On the 18th of Dec., 1880, Perretz writes, “Dear Sir:— Yours of the 16th inst. to hand, contents lean hardly understand ; do you mean for me to have that work done for you? if so iimit me to a price, and to whom you would like me to give the job ? tell me exact how much to cutoff, and how high to leave at the stem,” all the off fall I will take, such above the barch line. Awaiting an early reply with instruction, I remain, very respectfully, yours, T. B. Perretz.” On the 20th Mr. Coffin, Mr. Robert's secretary, writes that his letter had been received, and Mr. Robert would write the next day “about the work, and in the meantime you are to do nothing.” ⁵⁶⁴ On the 21st Dec., 1880, Mr. Robert writes, “My Dear-Sir :—Yours of the 18th instant is at hand, and you seem to be under some misapprehension in regard to the Falcon’s-hull.

I consider that I have bought the hull including the masts delivered at your option, either in Baltimore or-New York: but not the engines, boiler, anchors and chains, &c. I do not desire that you should do anything to the hull at all, but as I do not propose to use that part-of the hull, above the lower deck, I am willing, if you desire to do so at your own expense, that you should cut off that part of the vessel, retaining the material for your own use. I want the stem and apron, and about fifteen feet in length of the bow above the lower deck, with the upper deck attached, left on the hull. You speak in your letter of the “barch line,” this I do not understand.

The alterations and removals to the hull, I will attend to myself after the hull is delivered. If you have any trouble in understanding this letter, read it to some master shipwright, and he will be able to explain it I think, so there wül be no trouble.” The next letter Perretz writes, he only says, “would you object for me of having any caulking done on the lower part of the hull, if I should find it necessary in order to bring her safe to New York. She might be dry on the side, if so limit me, to what extent, by return mail and by so doing oblige, respectfully yours.” T. B. Perretz. Mr. Robert replied through his secretary, on the 80th Dec., that “ he does not feel authorized to allow any repairs or caulking done to the hull.” Subsequent to this correspondence, and without notice to Mr. Robert, Winternitz & Sons sold the wreck Falcon, to the appellant, Cheney, on the 11th of Feb., 1880.

Cheney having informed Robert that he had purchased, Robert (through Bolander, the agent who had brought him and Winternitz & Sons into treaty), on Feb. 15th, tendered the $400, the price for the Baltimore delivery—which being-refused, this replevin was sued out. ⁵⁶⁵ Upon these facts, the appellants contend, that there was no contract to support the action of replevin, while the appellee insists that the correspondence establishes a perfect contract between the parties, through which the appellee was entitled to the boat, and fully justified the action brought. There was other evidence offered on the part of the plaintiff to support this view of the case, to which we think it unnecessary now to advert, as in our view the correspondence establishes a contract of sale, without that additional evidence, which, however, was most valuable to the jury. This is a possessory action, and it is necessary that there should he a concurrence of all the elements of a contract, not only for the passage of title, hut to give the right to immediate possession to the vendee. To effect a sale it is only necessary that the parties fully agree, with respect to a thing capable of identification, that for an agreed price the title to the thing shall pass from vendor to vendee.

If it he sold for cash, or on credit, with agreement that possession shall not he given tillprice paid, the vendor has a lienfor his price, and nothing hut tender or actual payment can give the right to possession. 1 Parsons on Contracts, 519, 524, 525-6. The effect of a complete contract of sale is, as very clearly stated by Baron Parke in Dixon vs. Yates, 5 Barn. & Ad., 540, cited by appellee, “to vest the property in the bargainee ; hut there is an element here, not involved in that case, namely, that the price was to he paid as a condition for delivery of possession, and the right of possession accordingly, depended on payment or tender. It is a very common thing to buy and sell by letter. In such cases the correspondence contains the contract, and it is for the Court to construe the contract as it is extracted from the correspondence.

Eliason vs. Henshaw, 4 Wheaton, 225 ; Carr vs. Duvall, 14 Peters, 77 ; Bonnewell vs. Jenkins, L. R., 8 Ch. Div. 70 ; Prop’rs, Eng. and For. Credit Co. vs. Arduin, L. R., 5 E. and I. App., 64; ⁵⁶⁶ Turner vs. Yates, 16 How., 23 ; Watts vs. Ainsworth, 1 H. & C., 83. The last cited case is very analogous to this.

Perretz’s first letter, dated 14th Dec., 1880, distinctly accepts Robert’s offer, made orally to Winternitz & Sons, in the presence of Perretz, with the additional conditions, suggested by him to Robert in their conversation on the subject. Comparing that letter with the proof respecting the oral interviews, we find it substantially embodies the conditions upon which the sale was to he made. Robert’s-reply on the next day acknowleged Perretz’s letter as an acceptance of his offer as made.. He suggests no deviation as having been made by Perretz, nor makes any qualifications himself.

He simply says he has received his letter-accepting his offer, proceeds to say what he understands Perretz to mean by “ harch line,” and that he understood the masts to go with the hull—showing his confidence, that, they had reached a definite understanding, he says he will direct Mr. Bolander to prepare the formal contract. In Perretz’s next letter he makes no objections to Robert’s, interpretation of his meaning in the use of the term “harch line,” and expressly says “of course the masts go with the hull.” The reference by Robert to the preparation of a formal contract, cannot negative the idea that, the parties had already bindingly agreed on the matter,, and so fully understood. In Bonnewell vs. Jenkins (already cited) the Judge says that a long series of cases has established, that reference to a future contract, is not enough to negative a present one. Reference is there made to Crowly vs. Maycock, L. R., 18 Eq., 180.

We think those letters establish a-contract between the parties from which neither had the right to recede, without liability for breach of it. The distinct recognition, in Perretz’s second letter of Robert’s expressed understanding of what Perretz. meant by what he said in his letter of acceptance, made that letter, as explained by Robert, the contract of the parties. In Perretz’s second letter he proceeds to explain ⁵⁶⁷ why he ashed for the “off fall,” and asks for “the old iron.” Had this additional request been refused, it would not have affected the contract, for Perretz had no right to add other conditions to the offer he had accepted. But Perretz’s' language is that of request and shows he understood the company had bought.

On the 16th December, Robert grants the request about the wood and iron, giving directions respecting the same. On the 18th, Perretz inquires if he wants him to have the work done for him, evidently treating the sale as fully effected. Robert replied that he would attend to the work himself, hut adds that as he “ does not propose to use that part of the hull above the lower deck, he might take that off at his own expense.” At this no dissatisfaction is expressed. It is simply followed by.ah inquiry if he is willing that caulking may he done in order to get her safely to Hew York; thus again showing he regarded the boat as belonging by contract, to Robert’s principals.

Robert replied to that inquiry, saying, he did not feel authorized to allow any repairs, and the correspondence was suspended. We think the first two letters made a contract between the