134 F. 711 | 7th Cir. | 1905
after stating the facts, delivered the opinion of the court.
The relation created by the contract in question, as between the parties thereto, was that of principal and agent, principal and factor, bailor
“Fifth. The first party shall insure all cargoes of coal consigned to the second party, and deliver the same safely alongside second party’s docks, and said second party shall thereupon be responsible to said first party for all coal, after such delivery alongside its docks, and shall insure all such coal upon receipt of the same at its own expense, and shall also pay any taxes that may be thereafter levied upon the same; and also guarantee to the first party weights as per bills of lading, but said bills of lading shall be accompanied by manifests showing initial, number and contents of each car, evidencing the coal covered by such bills of lading. These charges shall be considered as part of the cost of storing and handling.”
The agreement made the defendant in error the selling agent of the plaintiff in error at Ashland and Duluth. The coal was to remain the property of the bailor until sold and delivered by the ■bailee, and until the proceeds were accounted for. Then, and then
“Both parties in entering into this agreement realize the uncertainty of absolute deliveries growing out of strikes, casualties or other causes beyond the control of either party, and it is hereby mutually acknowledged that the intent of this agreement is not to bind either party as to- failure to perform or modified performance by reason of matters beyond the control of the party in default, but that the coal shall be shipped and accepted by the second party as per delivery specified so far as the labor and the physical conditions at the respective plants and the ability of the carriers will permit.”
The loss concededly occurred by unforeseen accident, and without default or negligence on the part of the bailee. Its liability as insurer is not established by any express term of the contract. We do not think that it can be fairly implied. Nor is there anything in the surrounding conditions which would warrant a construction to work out liability as insurer.
The judgment is affirmed.