223 F. 698 | 2d Cir. | 1915
This is an action upon a contract for the sale of prunes. The plaintiff sold to defendant 4,500 boxes of Clover Blossom prunes, which were to be shipped in accordance with the terms of a certain contract. It was denied in the answer, but admitted at the trial, that 3,000 of these boxes were delivered to defends ant, atid accepted and paid for by him, in accordance with the terms of the agreement. But the claim of plaintiff as to the remaining 1,500 boxes was that it tendered them to defendant on various occasions in New York in accordance with the terms of the contract, and that defendant in violation of the contract refused to accept the same, and thereupon plaintiff stored them in a warehouse in New York, subject to defendant’s order, and brought this action to recover the sum of (13,234.36, with interest from January 10, 1912.
, The evidence showed that in the sale of California dried fruits two forms of contract were used, which differed in their terms. One provided for shipment by rail and the other by water. The form used in rail shipments provided as follows:
“If shipment is not accepted or disapproved within three full business days after arrival, and goods are subject to buyer’s privilege of examination, contract shall be considered fully complied with on seller’s part, and invoice, if unpaid, becomes immediately due and payable. (Note: In the event of the shipment being inaccessible on arrival seller or seller’s agent should be notified within said three days.)”
And the form used in water shipments provided as follows:
“In view of the recognized increased hazard of water shipment, due to climate and other conditions, buyer hereby expressly assumes all risks after examination by an official inspector of the Dried Fruit Association of California, and issuance by him of an Association certificate as to quality (and in the case of prunes count), and issuance by seller oí a sworn certificate of weight. Cost of inspection to be paid by seller.”
The contract under which the transaction in question was entered upon was a water shipment contract containing the provision last quoted, although defendant urged upon the court that, if there existed a contract at all, it was a rail shipment contract which contained the first of the above quoted provisions. Under a contract for water shipment the prunes were accepted in California and were to be paid for on presentation of the draft within 10 days from date of shipment, which was about 3 weeks previous to the arrival of the goods under ordinary conditions. The certificate of inspection on the coast was made, as seen in the provision cited, a final acceptance of the goods.
The plaintiff forwarded for collection to the Chase National Bank of New York a draft drawn by it on defendant for the sum of $3,-167.67. This draft was dated December 27, 1911, and was payable 10
“I repeatedly asked him when lie would pay the draft, and he kept saying-that he couldn’t pay it at that time, because he didn’t have the money, but just as soon as he got rid' of some of the goods he had in warehouse he would take up the drafts. That was the only reason he gave for not wanting to-pay .that draft. I had conversations with him every week; in fact, almost every day or so. Our offices are in the same district, right across the street from his. I would meet him on the street 15 times a day, or in our office,, and this was a very natural topic of conversation.”
He also testified that the bank, after defendant refused payment of the draft and the prunes were released to his firm, turned over at the same time the draft, and the certificate of weight, the certificate off count, and the certificate of inspection.
The defendant claims that the complaint should have been dismissed' because:' (1) The court had no jurisdiction; (2) because plaintiff failed to prove that attached to the draft was a sworn certificate off weight; (3) that there was no proof of a contract definite in terms; (4) that under the Uniform Sales Act, which is part of the law of the state of New York and of this, jurisdiction, the only form of action the plaintiff could bring was an action for damages and not for the purchase price.
“No District Court shall have cognizance of any suit (except upon .foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer * * * unless sueh suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made.” Judicial Code (Act March 3, 1911), § 21, subd. 1.
The intent of the statute was to prevent citizens of the same state from creating a diversity of citizenship by assignment, and from thereby conferring upon the assignee by indirection a right to sue in the courts of the United States which otherwise he would not have possessed. The jurisdictional requirements under the statute seem to be two:
(1) The original parties to the chose in action sued upon must have been citizens of different states, so that an action might have been maintained in the federal courts had the chose in action never been assigned.
(2) The diversity of citizenship of the original parties to the chose in action must exist at the time the jurisdiction of the court attaches, which is the time when the action is commenced.
In Wilson v. Fisher, Baldw. 133, 30 Fed. Cas. 122, Case No. 17,803 (1830), the facts were these: A citizen of New York had obtained a judgment in a Pennsylvania court against a citizen of Pennsylvania. Before the commencement of the action upon the judgment, the New York citizen assigned the judgment to a citizen of .Pennsylvania, and the latter’s executors assigned it to the complainant. It was argued that, because of the intermediate assignment to the citizen of Pennsylvania, the original diversity of citizenship was lost, and the court lost its jurisdiction. The court thought not, and in the course of its opinion said:
“The question is thus presented whether the assignment mentioned in the act of Congress has reference to that under which the plaintiff claims directly, or to that by which the right was divested out of the party originally entitled to it. The suit cannot be maintained here unless it might have been prosecuted here, if no assignment had been made; that is, as we understand it, if it had remained wiih the original parties to the transaction, contract or cause of action. The law does not declare that no assignee shall prosecute his suit in this court unless his assignor might have done so; but, unless a recovery of the right claimed might have been had in this court if no assignment of it had been made, and of course in every case in which a recovery might have been prosecuted in the courts of the United States if no assignment had been made, it may be so prosecuted after such assignment to a. party competent to sue here.”
In Milledollar v. Bell, 17 Fed. Cas. 290, Case No. 9,549, 2 Wall. Jr. 334 (1852), the facts were as follows: This was a foreclosure of a mortgage by a citizen of New York, the mortgagor being a citizen of New Jersey. The plaintiff had title to the mortgage through several intermediate assignments, and the citizenship of none of the assignors was alleged. The court overruled the demurrer to the complaint, and said, through Judge Grier, then a Circuit Judge and after-wards Mr. Justice Grier of the Supreme Court:
*702 "The statute does not take from the assignee of a chose in action his right to sue in the courts of the United States, unless his immediate assignor could have sustained such action; but only in case the court could have had no jurisdiction as between the original parties to the instrument, if no assignment had been made. The situation or rights of temporary intermediate assignees, holders, or indorsers enter not into the conditions of the case. * * * We are of opinion, therefore, that as this bill shows that the complainant is a citizen of New York, and the defendants citizens of New Jersey, at the time the bill was filed, and that the original contractor or mortgagee is a citizen of the same state, and could therefore have sued these defendants, at the time this bill was .filed, in the circuit court of New Jersey, df no assignment had been made,’ this court has jurisdiction of the case, and the citizenship of the intermediate holders, owners, or assignees is immaterial, and need not be averred.”
In Montalet v. Murray, 4 Cranch, 46, 2 L. Ed. 545 (1807), an action had been brought in the Circuit Court of the United States for the District of Georgia by a citizen of New York against one Murray to recover upon a promissory note payable to one Cardeaux de la Caye, whose citizenship did not appear in the declaration. The Supreme Couft, through Chief Justice Marshall, said that if it did not' appear upon the record “that the character of the original parties would support the jurisdiction the objection was fatal under the uniform decisions of the court.”
The defendant interposed an answer under oath, in which it denied separately, paragraph by paragraph, every averment in the complaint, except the one that plaintiff was a citizen and resident of New York.
“There is one thing more, Mr. Foreman, that iny attention has been called to in looking ever these papers, which you are at liberty to consider as bearing upon these questions of fact that I have submitted, and that is the defendant’s answer under oath, in which he denies everything.”
The defendant assigns as one of the errors of the case the use of this language in the court’s charge, and declares that it undoubtedly created great prejudice in the minds of the jury against the defendant, “as it practically branded the defendant as a perjurer, and thereby deprived him of his chance to a fair trial at the hands of this jury.” We fail to see why the jury were not entitled to: take this matter into consideration, or why the court was not entitled to call it to the jury’s attention. The circumstance .certainly threw some light on defendant’s conception of the obligation of an oath, and was helpful, no doubt, towards the conclusion which the jury reached on the matter of liis credibility. When a defendant in his sworn answer denies everything, including facts about the truth of which he cannot have been at all ignorant, he has no reason to- complain if a court directs the attention of the jury to it.
We think defendant’s objection is untenable that the evidence fails to disclose that the parties made a contract definite in terms and which could be enforced in a court of law. We have found no reason to think that the minds of these parties did not meet, or that an agreement was not reached which was definite and certain.
When plaintiff’s local broker filled out the form of the- contract in suit, he was temporarily out of water shipment forms, so he used one of the rail shipment forms, writing on it immediately above the signatures the words: “All other conditions to he those embodied in regular water contract, etc.” He neglected, however, to strike out of the
‘‘It scarcely needs the citation of authority to support the long-established rule that the printed portions of a contract, when repugnant, must be subordinated to those which are written, and that the latter are presumed, from the circumstance of their special and deliberate insertion by the parties, to embrace the real intent and meaning. Leeds v. Mech. Ins. Co., 8 N. Y. 351; Harper v. Alb. Mut. Ins. Co., 17 N. Y. 194; Harper v. New York City Ins. Co., 22 N. Y. 441.”
So, in the case at bar, the conditions which are brought into the contract by the written clause will control whenever they conflict with the conditions which are in the printed form. Moreover the evidence shows that the parties gave this common-sense construction to the document, because two separate shipments under it were forwarded, received, and paid for upon presentation of draft, certificate, and sworn statement of weights.
The bill of lading was issued by the American-Hawaiian Steamship Company to Napa Fruit Company for 1,500 boxes of prunes shipped to the Napa Fruit Company as consignee at New York; and it was marked “Notify S. Eip-schitz.” Now it is undoubtedly a common-law rule that, if a seller takes a bill of lading in which he is named as consignee, the carrier is a bailee for the seller, not the buyer, and the title is retained. The practice of taking bills of lading in this form has been common for centuries in order to- preserve to the seller a hold upon the goods during transit. See Williston on Sales (1909) p. 414, where the cases are collected. The seller, by taking the bill of lading in his own name, was regarded as reserving the jus disponendi, or right of disposal of the goods, which was in fact title.
In North Pennsylvania Railroad Co. v. Commercial Bank of Chicago, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287 (1887), the bill of lading stated that the live stock “consigned to order P. M.,” who was the shipper, and it was marked “Notify J. B.” at point of destination. And the Supreme Court held that the carrier was liable for delivering the live stock to J. B.
But the form of the bill of lading is not in all cases conclusive. In Williston on Sales-it is said, in section 284:
“It is to be observed tliat, though the form in which the bill of lading is tafeen is indicative of the title to the goods shipped, in the nature of tho case, it cannot always be conclusive. * * * If it be supposed, however, that the circumstances are such that, were it not for the term of the bill of lading, the property would have passed, but the seller is named as consignee In the bill, an interesting situation is presented. The object of the seller in reserving the property is, it may safely be assumed, simply to secure himself in regard to the performance by the buyer of the latter’s obligations. By shipping the goods the seller has lost all use of them and has definitely appropriated them to his bargain with the buyer. If the shipper could be perfectly sure that the buyer would fulfill his obligation, it can hardly be doubted that he would have made a straight consignment to the latter. The effect of naming himself as consignee in the bill of lading should not bo greater than is necessary to effectuate the purpose of the parties. This purpose is to reserve the property for security only- — the same purpose that the seller of goods under a conditional sale has; the same purpose that a mortgagee who tafees title under a common-law mortgage has,”
“Tbe inference of the reservation of title from the form of the bill of lading is not conclusive, but may be rebutted by other evidence. Accordingly, if the seller indorses such bill of lading as above described and sends it to the purchaser, or if he takes the bill of lading in this form for some collateral purpose, such as protecting himself in case the purchaser does not accept .the goods, * * * title may pass to the purchaser notwithstanding the form of the bill of lading.”
But we need not consider whether at the cominon law the title to the goods under this bill of lading was reserved to the seller for purposes of security only, so that the buyer had a kind of equitable title,, and could be sued for the purchase price, or could maintain an action for the recovery of the possession. No such question or questions are involved.
The casé has been argued upon both sides upon the assumption that whatever contract existed between these parties was subject to the New York Sales of Goods Act, which went into effect on September 1, 1911 (Laws 1911, c. 248). We shall therefore decide the questions involved upon the theory that the contract is a New York contract. The defendant directs attention to article 7, section 226, subdivision “b,” of the act, which reads that:
“Where the goods are shipped,” and by the bill of lading “the goods are deliverable to the seller or his agent, or to the order of the seller or his agent, the seller thereby reserves the property in the goods.”
And he deduces from this that, as the property was thus reserved to the seller, the only cause of action th.e plaintiff could possibly have upon defendant’s refusal to accept and pay for the goods was one for breach of contract. The plaintiff, however, relies upon the remainder of subdivision “b,” which reads as follows:
“But if, except for the form of the bill, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.”
And he calls attention to section 144 of the act (Laws 1911, c. 571), subdivision 2 which reads as follows:
“Where, under á contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of transfer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it shall be a defense to such an action that, the seller at any time befox-e judgment in such action has manifested an inability to perform, the contract or the sale on his part or an intention not to perform it.”
A consideration of the provisions of the act satisfies us that, while the title to the goods in question remained in the seller, the reservation was solely for the purpose, of securing performance by the buyer of his obligations, and that the act gives to the seller the right to maintain an action for the price, although the property in the goods had1 not passed.
There are a number of other assignments of error, but we do not deem it necessary to enter upon a discussion of them. We think the
Judgment affirmed.