116 Tenn. 141 | Tenn. | 1905
delivered the opinion of the Court.
The defendant declining to accept the cotton, which arrived in Fayetteville on the 7th of July, the same was sold by the complainants, and the present bill is filed against the defendant to recover the loss occasioned by this resale. In their bill the complainants insist that in Georgia, as well as in other cotton States, including Tennessee, a rule had been adopted by the cotton trade several years prior to the present transaction, known among men engaged in that trade as the “South Carolina rule,” which embodied a use and custom of longstanding, universal and notorious among cotton dealers and purchasers within this territory, that “prompt shipment,” in a contract for the sale of cotton, meant a delivery to the common carrier within fourteen days from the time of the contract, and, the delivery of this cotton having been made within that period, that whatever delay occurred thereafter resulted from the action or nonaction of the railroads so receiving it, and for this complainants were not liable. It is further insisted, in the bill that the complainants, upon- the defendant’s final declination to take this cotton, gave notice that it would resell it on its account and that in the resale made in accordance with this notice the highest market price was obtained. The defendant answered, and averred that no such ruie or use existed as was alleged by the complainants, or, if it did, averred that it was unknown
These Avere the defenses made in the original answer. It developed, however, in the taking of the proof, that only forty-nine hales of cotton of the shipments made by complainants to the defendant reached Feyetteville, one bale disappearing in the course of transportation, and that only this number of bales, as a matter of fact, were tendered to the defendant, and only that number disposed of upon its resale. When this was disclosed, the answer was amended so that the Elk Cotton Mills as an additional defense averred that the complainants had breached their contract in failing to tender the fifty bales which had been contracted to the defendant.
The chancellor dismissed this bill, and the court of chancery appeals has affirmed his decree, resting the af-firmance upon the fact, as found by that court, that while it was a custom of long standing and so uniform and notorious in Georgia, North Carolina, South Carolina, and other cotton States among dealers in cotton
There is very considerable authority for the contention made by the complainants that this contract, having been closed in Atlanta, was a Georgia contract, and that the terms used by the defendant in its telegram of June 17th, to wit, “prompt shipment,” were to be construed with regard to the well-established usage, existing there, as well as elsewhere, in the cotton States; and this, though the defendant was without knowledge of the same. In Star Glass Co. v. Morey, 108 Mass., 570, it was held that a contract made in Boston for glass to be manufactured in Philadelphia and there delivered to the carrier is governed by the customs and usages prevailing in this latter city. In Samuels v. Oliver, 130 Ill., 73, 22 N. E.. 499, the proposition is announced, as supported by many previous cases determined in that State, as well as upon the authority of Lawson on Usages, 47, 284-287, that a person dealing at a particular market will be taken to have dealt according to the known general custom and usage of that market; and this has been held to be the mile, whether he in fact knows of the cus
A delivery of a less number was not a compliance with this contract. So far as it affected the contract relations of the parties, a failure in the matter of one bale was as much as a failure to deliver any greater number of bales. The complainants sue to recover for the breach of an entire contract, and in order to maintain their bill they must show a compliance or a willingness to comply with it as an entirety. Failing in this latter regard, they fail altogether. Tiedeman on Sales, section 101; Barker v. Reagan, 4 Heisk, 590. Their insistence that they were relieved from tendering fifty bales by reason of the repudiation of the contract by the defendant, under the facts found by the court of chancery appeals, cannot avail them. If they had accepted the repudiation, or rather cancellation of the contract contained in the telegram from the defendant, of July 7th, then this failure would not have affected, oth
The rule of law on this subject is thus stated in 9 Cyc., p. 637: “If a promisee elects not to accept the remittance and continues to insist on the performance of the promise, as he may do, the contract remains in existence for the benefit and at the risk of both parties, and if anything occurs to discharge it from other causes the promisor may take advantage of such discharge.” The following authorities are cited which support this text: Smith v. Georgia Loan, etc., Co., 113 Ga., 975, 39 S. E., 410; Kadish v. Young, 108 Ill., 170, 43 Am. Rep., 548; Howard v. Daily, 61 N. Y., 362, 19 Am. Rep., 285. See also, Ault v. Dustin, 100 Tenn., 366, 45 S. W., 981.
In the leading case of Roehm v. Horst, 178 U. S., 1, 20 Sup. Ct., 780, 44 L. Ed., 953, in discussing the effect of an unqualified and positive refusal to perform a contract, though the performance thereof is not yet due, the supreme court of the United States quote at length
We think, on this ground, that the complainants’ bill was not maintainable, and therefore should be dismissed. The costs of the cause will be paid by the complainants.