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