268 F. 917 | 7th Cir. | 1920
Judgment was rendered against Koko-mo Company for damages resulting from its refusal to complete deliveries of barbed wire to the republic of France. It attempted to jus-
Parts of the contract, material to the decision, are these:
“Price, $2.98 per Inmdred pounds, f. a. s. New York City.”
“Packing: Wire shall be wound on reels furnished by seller and to Become property of buyer, and suitably packed by seller, without cost to buyer, for ocean carriage.”
“Time and mode of delivery: Delivery shall be completed within 00 days from date (August 23, 1915) at the rate of 1,000 tons each 30 days. Time is of the essence. Delivery shall be made free alongside ocean steamer', New York City.”
“Terms of payment: Payment shall be made by buyer for each lot delivered within 5 days after presentation to it at the oflice of its agents, Messrs. J. P. Morgan & Co., 22 Wall street, New York City, of proper invoices, shipping documents showing delivery as aforesaid, and inspection certificates.”
Situation of parties when making- the contract: Kokomo Company was a manufacturer of steel products in Indiana. France was at war, and barbed wire was an urgently needed material. France was represented in this country by an official commission. Under and through the commission J. P. Morgan & Co., of New York, were financial agents, and G. W. Sheldon & Co., of New York, were shipping agents, looking after ocean transportation to France.
Four days after the date of the contract the buyer mailed to the seller a letter of “instructions as to billing, marking, and shipping.’ This stated that certain identifying marks should “appear plainly on each package”; that the invoices should “give full particulars as to package numbers, marks, gross and net weight: of packages, and the quantity contained in each package”; that “'shipment should be consigned to G. W. Sheldon & Co., 24 State street, New York City, with rail bills of lading marked ‘For Fxport, Lighterage Free’;” and that “original bills of lading should be mailed” to J. P. Morgan & Co.
Probably no controversy would have arisen if the seller had completed its deliveries (either on the cars at Kokomo or alongside ship in New York harbor) within the time specified in the contract. As the buyer was anxious to get the material, it waived the seller’s delays; but those delays ran the shipments into the railroad congestion and embargo of 1916, and finally a situation developed in which cars leaving Kokomo would not arrive in New York until months later. From the first Sheldon & Co. (in charge of ocean transportation for the buyer) had been notifying Morgan & Co. of the arrival of each lot in New York, and Morgan & Co. had been paying the seller within five days thereafter. While shipments were going through promptly no dispute arose; but when months elapsed before shipments from Kokomo would arrive in New York, the seller took the position that it was entitled to payment within five days after Morgan & Co.’s receipt by mail of invoices, inspection certificates, and railroad bills of lading showing freight and lighterage charges prepaid, the contention being that the bills of lading constituted the “shipping documents” mentioned in the payment provision of the contract. Thereupon the buyer insisted that it was under no obligation to pay until five days after the seller’s
The judgment is affirmed.
On damages the seller cited: Warren v. Stoddart, 105 U. S. 224, 26 L. Ed. 1117; Lawrence v. Porter, 63 Fed. 62,11 C. C. A. 27, 26 L. R. A. 167; McKnight v. Dunlap, 5 N. Y. 537, 55 Am. Dec. 370; Penn. Ry. Co. v. Washburn (D. C.) 50 Fed. 335; Deere v. Lewis, 51 Ill. 254.
And the buyer cited: 5 Birdseye’s Consol. Laws of N. Y. p. 6292, § 148; Goldfarb v. Campe Corp., 99 Misc. Rep. 475, 164 N. Y. Supp. 583; Hirsch v. Georgia Iron Co., 169 Fed. 578, 95 C. C. A. 76; Campfield v. Sauer, 189 Fed. 576, 111 C. C. A. 14, 38 L. R. A. (N. S.) 837; Waldrip v. Hill, 70 Wash. 187, 126 Pac. 409; Chisholm v. Preferred Bankers’ Life Assurance Co., 112 Mich. 50, 70 N. W. 415.