296 F. 316 | 3rd Cir. | 1924
This suit was instituted by the Interocean Mercantile Corporation to recover the difference between the contract price and market price of about 200 tons of sugar sold by it to the-plaintiff in error. On May 21, 1920, the plaintiff belo\v entered into-a contract with the defendant for the sale of about 200 long tons of
It contends that the relative bills of lading were inadmissible, because the testimony shows that the facts they contain, as to the date of shipment, are untrue, and in any event their truth or falsity should have been submitted to the jury. This contention is based upon the deposition of John Engchiaw, under whose supervision the bills of lading were prepared at Samarang, which was 175 miles from Sourabaya, the port at which the sugar was loaded on board the steamer. He was the general manager of the Osaka Shosen Kaisha,' Limited, at Samarang, Java, hereinafter called the Osaka Company. N. V. Kwik Hoo Tong Handel Mij, hereinafter called the Kwik Company, was the agent and representative of the-Osaka Company at Sourabaya. The Kwik Company telephoned Engchiaw that the Honolulu Maru was due to arrive at Sourabaya on August 28, 1920, and he began to make out the bills of lading that day. Four thousand tons of sugar were placed under the control of the Osaka Company at Sourabaya — 1,000 tons on August 27, and 3,000 tons on August 28, 1920. It was in the “go-downs” of the shippers at that place.
Engchiaw testified that he being at Samarang, 175 miles from Sourabaya, did not know, of his own knowledge, the date of the shipment of the sugar. But that fact does not establish that the date of the shipment contained in the bills of lading was incorrect. All that his testimony shows is that he did not of his independent knowledge
For their mutual protection the parties provided in the contract that the relative bill of lading should constitute proof of the date of shipment., The defendant contends that “shipment” means “putting the goods on board of a vessel,” while the plaintiff contends that it means “delivery of goods to a carrier for transportation, whether by land or water or both.” Whichever it means, the contract provided that the relative bill of lading should constitute proof of that fact, and in the absence of fraud, which is neither alleged nor proved, this provision meant proof conclusive. Second National Bank of Hoboken v. Columbia Trust Co. et al. (C. C. A.) 288 Fed. 17. The dates of shipment contained in the bills of lading are all within the time specified in the contract. Admittedly this is the real question in -the case, and we resolve it against the defendant.
The defendant contends that it was error to admit the delivery order, and, if admitted, the jury should have been allowed to pass upon whether or not the sugar would have been delivered upon the acceptance and presentation of that order to the carrier, and that 'the order, upon its face, was not sufficient to pass title to the sugar. Therefore the defendant was afraid, or, at least, did not wish, to pay for the sugar on insufficient documents and without further assurance that it would receive the sugar on payment of the purchase price. The contract provided that:
“In lieu of cash advance or letter of credit the buyer hereby undertakes to sign, under this date, letter addressed to the Equitable Trust Company, as drafted on back hereof, by which they agree to make cash payment to them for account of the Interocean Mercantile Corporation against delivery order and provisional invoice as soon as the sugar shall have been cleared through the custom house.”
The letter was written in accordance with this provision of the contract. The only objection raised at the trial, or here, as to the delivery order, is that it is defective and insufficient, in that, on its face, it does not show that defendant would have received the sugar on presenting it to the carrier, because it is indorsed in blank, and not to defendant or bearer, fails to state the kind and quantity of sugar, and does not show who Lunham & Moore were. But the order does authorize the delivery of 2,008 bags of sugar, 136 pounds short of 200 tons, marked “I. M. C.,” to the plaintiff, which indorsed it in blank and tendered delivery of it to defendant. The contract does not provide for any special form of order. The fact of the quantity and quality of the sugar was not once raised before or during the trial. The purpose of the parties in making the provision as to the delivery
There is no denial that the sugar, the required quantity and quality, remained on the dock from December 16, to December 22, 1921. Defendant full well knew that the sugar was there and would be delivered on the payment of the purchase price, which it has tried to avoid by raising technical and unsubstantial objections. In fact, it is admitted that, prior to the arrival of the sugar, plaintiff notified defendant that it was about to arrive so that arrangements could be made to pay for it. Defendant replied “that it would not accept the sugar and would not pay for the same.” This anticipatory breach rendered the presentation of the delivery order unnecessary, and the defendant may not now hide behind the alleged insufficiency of the order. Hartley v. James, 50 N. Y. 38; Second National Bank of Hoboken v. Columbia Trust Co. (C. C. A.) 288 Fed. 17, 22; Zuck v. McClure, 98 Pa. 541; Central Trust Co. v. Chicago Auditorium Association, 240 U. S. 581, 589, 36 Sup. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580.
It is urged that the learned trial judge erred in directing a verdict because the pleadings raised an issue of fact, the truth oEwhich could only be determined by the jury. Defendant refers to the allegation in the statement of claim that the tender of the delivery order “entitled the bearers to receive 2,008 bags of said sugar shipped by said steamer Honolulu Maru.” The defendant admitted the tender, “but denies that the said delivery order would have entitled the defendant to receive the sugar bought by it.” In other words, the fact as alleged is admitted but its legal effect is denied.
The construction of the contract and delivery order was for , the court, and not the jury. Whether or not the possession and presentation of that order to the delivery clerk of the carrier would have entitled the defendant to receive the sugar depended, not upon collateral facts and circumstances, but upon the provisions of the contract and delivery order themselves. There was no dispute about the facts. The legal effect of those instruments was for the court, and not the jury. West v. Smith, 101 U. S. 263, 270, 25 L. Ed. 809; Hamilton v. Liverpool, London & Globe Insurance Co., 136 U. S. 242, 255, 10 Sup. Ct. 945, 34 L. Ed. 419; Hughes v. Dundee Mortgage Co., 140 U. S. 98, 104, 11 Sup. Ct. 727, 35 L. Ed. 354.
There was therefore no question to be submitted to the jury and the judgment is affirmed.
