105 F. 478 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1900
The facts in this case, which are not in dispute, are as follows: In January, 1897, the parties to the suit entered into a contract that contained, inter alia, these provisions :
“The American Tin-Plate Co., of Elwood, Indiana, agrees to sell, and Nathan Trotter & Co., of Philadelphia, Pennsylvania, agrees to buy:
“Description of Goods: ‘Kanner’ brand tin plates.
“Quantity: 5,000 boxes, surface 14x20, 112 sheets. * * *
“Sizes: Buyers to have privilege of specifying any of the following sizes [naming eighteen sizes from 10x14 to 20x28]. t
“Place of Delivery: Car lots Philadelphia, Pa.
“Time of Delivery (each delivery to be considered and treated as a separate contract): One-sixth each month, July, 1897, to December, inclusive.
“Specifications: To be given not later, than the 20th of each month preceding the month’s delivery.
“Not less than 50 boxes of a single size and gauge.”
Trotter & Co. never availed themselves of the privilege to specify sizes allowed them by the contract, and the tin-plate company never delivered, or offered to deliver plate of any size. This suit is brought to recover as damages the profits that would have been made by the plaintiff if the plates had been delivered.
There is some conflicting testimony concerning the existence of a trade custom that requires a buyer of tin plates to specify before a certain day in each month the sizes that he desires to have delivered during the following month. But I do not consider the testimony to be relevant, for the reason that, even if such a custom were clearly established, — and it is not thus established, — it could not prevail against the clear and unambiguous terms of the contract in suit. As I view the controversy, it must be determined by a construction of the contract, taken in connection with the undisputed failure of the plaintiff to make or tender performance on its part. To my mind, the contract is free from doubt. The plaintiff agreed to sell, and the defendants agreed to buy, 5,000 boxes of a particular brand and size of tin plate, the brand being “Kanner,” and the size beifig 14x20, each box to contain 112 sheets. 0ne-sixth of this amount was to be delivered each month at Philadelphia. If the
This conclusion is supported by the following authorities: Smith v. Loomis, 7 Conn. 110; Hapgood v. Shaw, 105 Mass. 276; Nelson v. Elevating Co., 55 N. Y. 480; Kunkle v. Mitchell, 56 Pa. St. 100. The plaintiff has cited two cases — De Loach v. Smith, 83 Ga. 666, 10 S. E. 436, and Posey v. Scales, 55 Ind. 282 — in behalf of the proposition that no delivery or tender was necessary until the defendants furnished specifications. It will be found, however, upon examination of these decisions, that they each differ in a material point from the case in hand. There each contract imposed the duty of furnishing specifications upon one party, and under such circumstances the other party could not perform or tender until the duty to specify was discharged, for he could not know what his own obligation was until the specification made it clear. In the case before us, however, there was no such duty. The buyers had nothing more than a privilege, of which they might or might not avail themselves. It was a mere option, which they were not bound to exercise, and therefore failure to exercise it imposed no obligation upon them, and gave no corresponding right to the plaintiff.
Judgment will be entered upon the reserved point in favor of the defendants notwithstanding the verdict.