Cocker v. Franklin Hemp & Flax Manuf'g Co.

| U.S. Circuit Court for the District of Massachusetts | May 15, 1839

STORY, Circuit Justice,

in summing up to the jury, said:

The contract or order, under which these gill pins were to be furnished, does not specify any time at which they were to be delivered. The result of this omission isr that the law treats the contract, as if it had expressly stated, that they were deliverable within a reasonable time. No evidence,, therefore, could properly be admissible to prove a specific time, at which they were to be delivered; for that would be to contradict and vary the legal construction of the instrument. But the parol evidence was admitted of the conversations, to show what, at the time, the parties understood was a reasonable time, within which, under ordinary circumstances, the contract might be fulfilled. In this view, the parol evidence did not contradict or vary the written contract, but went merely to show the opinions of the parties as toi the reasonable time for executing it. I thought, and still think, that in this view the evidence was clearly admissible. And I am very glad to find, that this my view of the matter is confirmed by the opinion of the court of exchequer in Ellis v. Thompson, 3 Mees. & W. 443. Mr. Baron Alderson, (a very able judge), on that occasion used the following language, which I cite, as fully expressive of the very opinion, which I entertain on the same subject. “There is no specification,” said he, “in the contract, as to the time when the delivery is to take place, and, therefore, the law would imply, that the delivery should take place within a reasonable time. And it is a question for the jury at the trial; and this was the question put to them: How the reasonable time, which is an implied part of the contract, is to be ascertained? It seems to me, that the correct mode of ascertaining it is, in such a case as this, by placing the court and jury in the same situation as the contracting parties themselves were in, at the time they made the contract; that is to say, by placing before the jury all the circumstances, which were known to both parties at the time the contract itself took place. By so doing, you enable the court and jury to form a safer conclusion, as to what is the reasonable time, which the law implies, and under which the contract itself took place.” So far the learned judge has expressed himself on the very point of this case. The whole question now before the jury is, whether these articles were manufactured and offered to be delivered within a reasonable time. That reasonable time must be judged of by all the circumstances, and, of course, with all the natural calculations, which might fairly arise from the distance of the countries, the season of the year, the state of the markets, and orders, the pressure of business, and the common disappointments and retar-dations incident to the manufacture of any new article. The contract was made in Boston; the articles were to be manufactured in England. Of course, a reasonable time for the transmission of the order, for its due and faithful execution, and for the shipment and arrival at New York, was necessarily in the contemplation of the parties. Were the goods, then, delivered, or offered to be delivered, within such reasonable time? If they were, then the defendants are bound to pay for them. If not, then they ought to be exonerated. The conversations which have been admitted, as I have stated, are evidence, not of a contract to deliver at a specified time (four months), at all events, or otherwise the bargain was to be void. But merely as statements of opinion and probabilities, uttered by a young man, sanguine in his expectations, and, without doubt, honestly made. But the other side must be presumed to be as good judges as himself, of the time which might or would be required for the transaction of the order and the shipment and arrival of the goods, if not of the time required for the actual execution of the order. Opinions are not contracts, but expressions of belief; and must so be understood. They affirm what may be, not what will or shall be absolutely done.

[NOTE. A new trial was had. and the jury rendered a verdict for plaintiffs. Case No. 2,1)31. Por hearing on exceptions to interrogatories and cross interrogatories, see Case No. 2,930.]

Let us then see, how the evidence stands on this subject as to the reasonableness of the time and the diligence in executing the order. (Here the judge recapitulated the evidence. The case was then left to the jury upon the matter of fact.)²

The jury disagreed, and no verdict was found.

2 In Bottomley v. Forbes. 5 Bing. N. C. 127. the court held, that, where a doubt was raised by evidence upon the meaning of a mercantile contract, evidence was admissible of the usage or course of trade at the place where the contract was to be carried into effect, 1o explain or remore that doubt.