| Mass. | Feb 27, 1923
This is an action of contract to recover damages on account of the defendant’s refusal to accept and to pay for certain sugar, alleged to have been tendered by the plaintiff to the defendant under a written contract. The case was tried before a judge of the Superior Court, without a jury, who found for the plaintiff, and the case is before us on the defendant’s exceptions to the refusal of the judge to make certain findings and rulings.
The contract was dated April 29, 1920, and provided that the plaintiff should sell to the defendant, about one hundred tons of white Java sugar at twenty-two and one half cents a pound duty paid to be delivered “ex dock or ex store New York, Seller’s Option. No arrival no sale. . . . Shipment to be made approximately as follows: —
*107 “50 tons April/May Seller’s Option
50 tons July “
from the Island of Java.” Payment was to be made in cash upon presentation of delivery order or warehouse receipt. The contract also contained the following provision: “Should any unforeseen circumstances such as accidents, stress of weather, etc., prevent the steamer or steamers hereafter declared, against this contract from clearing within the time specified above, and the sellers or their Agents be unable to supply other tonnage of equal character and capacity, the buyer has the option of cancelling such portion of this contract, as has not cleared within the time specified above or taking the Sugar for later shipment without claiming damages and their decision is to be given immediately on advice from sellers that delay has occurred.” The April/May shipment was accepted and paid for, and the only question is, whether the plaintiff committed any breach of the contract which justified the defendant in refusing to accept the fifty tons to be shipped in July.
On September 3, 1920, the plaintiff wrote the defendant he was informed that the sugar to be shipped in July had been shipped on the steamship Karimoen,"but that “This information is given with the usual reservation for possible errors and corrections.” On September 28, 1920, the defendant learned that the Karimoen did not clear from Java until August 14; and by letter of the same date so notified the plaintiff, and stated that the sugar would not reach New York until the middle of October, and for that reason it can-celled the order. On September 29, 1920, the plaintiff wrote to the defendant he had learned that through unforeseen circumstances the Karimoen did not clear Java until August 14, and offered immediately to deliver to the defendant from a warehouse in New York Java sugar in compliance with the contract, and in place of the fifty tons which should have been shipped in July. On the following day (September 30) the plaintiff by letter offered to deliver sugar shipped on the steamship Madioen which cleared a port in Java on July 13, and which had arrived in New York; or from the steamship Siletz, which cleared a port in Java on July 5, but which had not arrived in New York; and requested the defendant to advise which delivery it preferred. The defendant refused to accept sugar from either steamer, and the plaintiff made a tender of sugar from the Madioen, which was refused.
While the sugar was to be shipped from the Island of Java to New York, the contract did not in express terms provide that the plaintiff should be the shipper, nor is that requirement to be inferred from its terms. It was immaterial to the defendant whether it was shipped by the plaintiff or by another; the obligation was to deliver in New York sugar which had been shipped from Java in July. Reference to the time and place of shipment, properly construed, identifies the sugar as it was to be delivered “ex dock or 1 ex store New York, Seller’s Option. No arrival no sale;” and as payment was to be made in cash on presentation of delivery order, it is apparent that the defendant acquired no title and incurred no liability until delivery of it in New York. The plaintiff was not required to be the shipper, but could purchase other sugar answering the description which had been shipped from Java in July. Cunningham v. Judson, 100 N.Y. 179" court="NY" date_filed="1885-10-13" href="https://app.midpage.ai/document/cunningham-v--judson-3630952?utm_source=webapp" opinion_id="3630952">100 N. Y. 179. Thornton v. Simpson, 6 Taunt. 556. See also Browne v. Paterson, 165 N.Y. 460" court="NY" date_filed="1901-02-01" href="https://app.midpage.ai/document/browne-v--paterson-3630227?utm_source=webapp" opinion_id="3630227">165 N. Y. 460.
It is the contention of the defendant that under the contract the plaintiff was required to make declaration of the steamer or steamers before arrival in New York. The plaintiff contends that he was not required to make any declaration or advise the defendant at any time of the name of the ship in which the sugar had been transported. C. A. Gambrill Manuf. Co. v. American Foreign Banking Corp. 194 App. Div. (N. Y.) 425. If it be assumed that the words in the contract “hereafter declared” are sufficient to indicate an intention of the parties that the plaintiff was obliged to declare the steamer or steamers in which the sugar had been shipped, we are of opinion that it could have been found from the correspondence above referred to that the plaintiff fully complied with the contract in this particular. While the first notice given by the plaintiff to the defendant on September 3 was conditional, it appears that on September 28 the plaintiff for the first time learned that the Karimo'en had not cleared from Java in July and that thereupon two days later he offered to deliver the sugar
There was evidence that the form of contract between the parties was a well known standard form in use for many years in the import trade, and had been extensively used in sales covering imports from Java; that it was the custom in the import trade under such a contract for the seller to give to the buyer the name of the steamer in which shipment was made when such information was received from the port of shipment, either by cable, letter or on the invoice; that it frequently occurred that the seller did not know the name of the vessel until after its arrival, in which case he then gave the name to the buyer, either by letter or on the invoice and delivery order when presented with the draft. Such a custom cannot be said to be unreasonable, contrary to, or in conflict with the contract in the case at bar.
Although the testimony above referred to standing alone is insufficient to establish a general or uniform custom to bind the defendant, we cannot assume that there was no other upon that question as the entire evidence is not reported; but apart from the evidence of custom the declaration made by the plaintiff was a compliance with the contract.
The circumstance that the defendant made a contract for the sale of sugar for delivery in September, of which the'plaintiff had
If the plaintiff’s letter of September- 3 could be construed as a tender, which we do not decide, and was ineffectual by reason of error or mistake, a subsequent tender by the plaintiff seasonably made is valid and the refusal by the defendant was not justified. Coleman v. Edwards, 5 Ohio St. 51" court="Ohio" date_filed="1855-12-15" href="https://app.midpage.ai/document/coleman-v-edwards-6752157?utm_source=webapp" opinion_id="6752157">5 Ohio St. 51. Whitla v. Moore, 164 Penn. St. 451. Borrowman, Phillips & Co. v. Free & Hollis, 4 Q. B. D. 500.
While copies of the contract, correspondence between the parties and certain oral testimony are printed in the record, it does not appear that all the evidence is before this court. In these circumstances we cannot say that the findings of fact made by the judge were unwarranted.
The defendant’s requests for rulings need not be considered in detail; from what has been said, none of them rightly could have-been made.
We perceive no error of law. The entry must be
Exceptions overruled.