267 F. 448 | M.D. Penn. | 1920
This case is tried without jury by agreement of parties, as provided by Act April 22, 1874 (P. L. 109).
The plaintiff, Henry Mann, trading as H. Mann & Co., has brought this suit against the defendant, the Mt. Union Tanning & Extract Company, and H. Theodore Sorg, as trustee of Bothamley Chemical Color & Extract Company, Incorporated, bankrupt, to recover an alleged ballance due upon the purchase of certain logwood on a contract in writing consisting of certain letters and telegrams. The Bothamley Company, a dealer in logwood and extracts, wrote to Mann, an importer of logwood, under date of April 19, 1916, offering to place with him an order for 2,800 tons of logwood, to be delivered at a specified time and price. Mann replied the following day:
“We accept your order for 2,800 tons of logwood, to be delivered during May, June, July, and August 27, $75 per ton, net cash ex dock, New York.”
The letter goes on saying:
“Regarding the delivery of this wood, we beg to say that wo have chartered the following boats, which cargoes we can apply to the above quantity: Schooner Fred A. Davenport, cargo 800 to 000 tons; Perry Setzer, load about 3.600 tons, arriving middle of June; Calhoun ifl. Ross, about 600 tons, should arrive the beginning of July; and Wiley, load 900 tons, should arrive the beginning of August.”
The letter further states:
“Of course we may change the above items, as we no doubt will charter other schooners, which may suit you better for your requirements. As to immediate deliveries, we are sorry to say that the chances are not very bright. We will give you as much as we possibly can of our arrivals by steamer. The first large arrival will be the Davenport, and it is understood that the delivery of the wood will be made to the best of our ability.”
The Mt. Union Company was a manufacturer of chemical extracts, with whom the Bothamley Company had arranged for the manufacture of the extract from the wood about being purchased, upon some agreement looking to the financing of the undertaking by the Bothamlev Company, who was not financially well rated by Mann & Co. At the instance, therefore, of the Bothamley Company, the Mt. Union Company telegraphed Mann & Co., April 28th:
“We will bo jointly responsible with Bothamley Chemical Co. for twenty-eight hundred tons logwood recently bought, shipment here.”
■ — followed by letter written the next day, supplementing the telegram, saying again:
*450 “We beg to advise that we will jointly obligate ourselves for the payment of the 2,800 tons logwood to be delivered in May, June, July, and August at $75 per ton net cash, ex dock New York,- which Bothamley Chemical Company have arranged with you to come up on the schooner, Fred A. Davenport, Perry Setzer, Calhoun E. Boss, and Wiley, which wood is to be shipped here.”
Regarding the latter, it is admitted that shipments were made during the month of June of wood from the schooner Davenport, amounting to 815 1B1B/224o tons, and 100 tons from yards of plaintiff, aggregating $68,675.72, and that another shipment was made during the month of August from the schooner Baxter, amounting to 501é20/224o tons, aggregating $37,622.54. It appears that certain shipments were made during the month of May from steamers Lajoc and Uraina, amounting to 936 tons, aggregating $70,274.50. The Mt. Union Company insists that these shipments must be credited to the 2,800 tons contract, while the plaintiff contends- that the same were on account of separate and independent contracts which he had with the Bothamley Company. The correspondence between Mann and Bothamley would possibly indicate as much, but the suit is between Mann and the Mt. Union Company, and it is important what the latter’s understanding was regarding this matter.
The Mt. Union Company was in need of the wood it was assured; otherwise, it should not have made itself liable for the purchase made. It was entitled under the contract to receive shipments during the month of May, aggregating not less than 700 tons, and accepting the promise of Mann, contained in his letter above quoted, to Bothamley, which no doubt was part of the inducement causing the Mt. Union Company to guarantee payments of the purchase, to the effect that other schooners would be chartered which might better accommodate defendant’s convenience, promising to give as much wood from other steamers coming in as possible, so as to help out on the contract; the defendant had a right to suppose that the deliveries made were on
The court having found that the evidence is not sufficient to sustain the defendant’s contention that extract in barrels was delivered on account of the contract to plaintiff, by the Bothamley Company or by defendant, the question remaining is whether defendant shall be charged with shipment from the steamer Fred A. Davenport in excess of $33,750 paid by check or draft from Olivier & Co.
The contract of guaranty provided that the cash should be paid at dock, and, if the purchaser did not pay upon the arrival of the wood at dock, notice should have been promptly given to the Mt. Union Company to that effect. Had the company received such notice, it could
It follows that the account will be stated thus; 2,800 tons logwood, at $75, $210,000, from which will be deducted the items $11,500, $3,-000, $70,274.50, and $67,500, and a dividend, $1,575.37,- admittedly received on account, paid by the trustee in bankruptcy of Bothamley & Co., leaving a balance of $56,150.13, for which the court finds in favor of the plaintiff and against the defendant with interest from August 30, 1916.