Harper v. Hochstim
278 F. 102
2d Cir.
1921
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above). The allegation of custom, or, properly speaking, of usage (Eames v. Claflin, 239 Fed. 631, 152 C. C. A. 465), need not be considered; for, if plaintiff did not tender what he agreed to sell, the manner of his shipment is of no importance. The only question in the case is as to the nature of the contract admittedly made. '

[1] If that contract is for what is now widely known as a “sale c. i. f.,” such sale was by specific agreement to be accomplished or executed by the delivery of documents by vendor to vendee, and not by the physical delivery of the actual goods for which the documents are the evidence of title. The bargain must.be kept as made; the buyer can no more refuse the documents and ask for the goods than can the seller *104withhold the documents and tender the goods; and the documents necessary are a bill of lading and policy of insurance, although additional, papers, especially an invoice, are usual. The foregoing is now too well settled to need more than reference to Thames, etc., Co. v. United States, 237 U. S. 19, 26, 35 Sup. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087, and cases there cited; Landauer v. Craven, 2 K. B. 94 (1912); Manbree Co. v. Corn Products, 1 K. B. 198 (1919); Setton v. Eberle Co., 258 Fed. 905, 169 C. C. A. 625; Klipstein v. Dilsizian (C. C. A.) 273 Fed. 473; Smith Co. v. Moscahlades, 193 App. Div. 128, 183 N. Y. Supp. 500, and cases there cited.

[2] This question of construction is one of general law, if not general commercial law, and unaffected by any statute of New York, especially the Sales of Goods Act (Consol. Eaws, c. 41, §§ 82-158), even assuming that the place of execution of agreement furnishes the law of the contract. That the Sales Act left c. i. f. contracts “as before” was specifically held in Smith v. Moscahlades, supra.

[3] We are thus required to construe or interpret a commercial or mercantile agreement partly written and partly printed, wherein at the very beginning it is written that the price is to be “c. i. f. New York,” and the shipment from China; but later follow printed words plainly implying that the seller is not only to procure insurance, but collect from the insurers, and therefore suggesting that such insurance would naturally be in the seller’s name. It is urged that this latter proviso is so repugnant to the nature of a c. i. f. contract as to transform it into something else, and justify a tender of goods in New York, instead of a delivery.of documents by mailing in China.

[4] It cannot be doubted that it is only when parts of a written agreement are so radically repugnant that “there is no rational interpretation that will render them effective and accordant that any part must perish.” Rushing v. Manhattan, etc., Co., 224 Fed. 74, 139 C. C. A. 520. Applying this rule, it must be admitted that for the seller under a c. i. f. contract to insure in his own name is an apparent departure from the theory of such a sale; for the goods are the buyer’s from and after delivery of documents, yet it is perfectly possible for the seller or any one else to act as buyer’s agent and validly insure for his principal's benefit (Hooper v. Robinson, 98 U. S. 528, 25 L. Ed. 219), and the whole of this agreement may be consistently regarded as containing an authorization from buyer to seller to get the insurance and in case of loss settle for the buyer with the underwriters. As the case cited shows, and it is matter of common knowledge, insurance for “account of whom it may concern” was known to be procurable, and "it might run to seller, yet inure to buyer. There is no radical repugnancy here presented, and the reconcilement above suggested is far less difficult than in many reported cases, of which Harding v. 4698 Tons of Coal (D. C.) 147 Fed. 971, is a fair example.

[5] But, if inconsistency be still insisted upon, the equally settled rule that the written portions of a document, in the absence of proof to the contrary, will prevail over the printed parts, may be appealed to. Lipschitz v. Napa, etc., Co., 223 Fed. 698, 704, 139 C. C. A. 228; Thomas v. Taggart, 209 U. S. 385, 389, 28 Sup. Ct. 519, 52 L. Ed. 845. The reason for this rule has never been better stated than by Eord Halsbury *105in Glynn v. Margetson, App. Cas. (1893), at page 357, quoting largely from Lord Ellenborough’s rulings of 1803. This rule plainly gives decision as it was given below.

A still older rule in the construction of instruments inter vivos is that the earlier of two supposedly inconsistent clauses prevails over the later; and this canon of interpretation has lately been insisted on by high authority. Vickers v. Electrozone, etc., Co., 67 N. J. Law, 665, 675, 52 Atl. 467. It also supports defendant’s demurrer.

[6] But a dependence upon rules, which, detached from the circumstances surrounding and justifying their formulation, often seem arbitrary, is unsatisfactory; every rule should be one of reason. Lfere the first and reasonable inquiry is: What is the dominant or leading thought revealed by this writing, read with the eye of experience? Plainly that seller was to ship the furs and send the documents ahead by mail, so that buyer could, if he wanted, sell the goods again “to arrive.” That is a c. i. f. contract. Therefore the parties intended to make that sort of agreement, and the “rules” are resorted to to effect their intent. This is the fundamental guide in construction; it is well put (with an extreme application thereof) in Morrill Co. v. Boston, 186 Mass. 217, 71 N. E. 550, by saying that, where—

“a repugnancy is found between clauses, the one which essentially requires something to he clone to effect the general purpose of the contract itself, is entitled to greater consideration than the other which tends to defeat a full performance; and repugnant words may be rejected in favor oí: a construction which makes effectual the evident purpose of the entire instrument.”

The evident purpose of this agreement was to give buyer substantially what a c. i. f. sale would have given him; the seller never even attempted to put buyer in that desired and agreed upon position, and the decision below was right, because the contract was of the kind' known as c. i. f.

Judgment affirmed, with costs.