276 F. 325 | S.D.N.Y. | 1921
(after stating the facts as above). Under the state practice the motion would be denied, because none of the articles of the answer objected to could possibly embarrass the plaintiff on a trial. The state courts are always loath to undertake the reformation o£ pleadings, by paring and pruning, for the same reasons which would have deterred a lesser hero than the son of Aicmene from undertaking his twelve labors. However the plaintiff has presented the substance of the case upon this motion, and'cannot complain if I decide it upon the merits against it.
None of the cases cited appear to me to touch the situation, except Thornton v. Simpson, 6 Taunt. 556, and two decisions in state courts upon this very contract The whole case turns upon whether the defendant had the right to substitute the West Cheswald for the Chifikn Maru. T think that it had. The contract was for the sale of sugar by weight and quality, to be shipped from Java, August-September, 1920, by steamer or steamers to Philadelphia, “names of such steamers to be declared later. Should steamer or steamers declared against this contract fail to arrive at port of destination for any cause, sellers arc relieved of responsibility tinder this contract.” Now, it is dear that, without the clause just quoted, the seller would have been obliged generally to deliver. The sale was of fungibles, and not of a cargo, already loaded on a given ship. Moreover, the seller might withhold his
I do not find it necessary to hold that, having once unconditionally declared a steamer, the seller could substitute another in every conceivable circumstance. For example, if the Chifiku Maru had been unconditionally declared, and then lost, it perhaps would be reasonáble that the buyer should be excused, because otherwise the seller could hold him if the price fell, though he could not hold the seller if it rose. Yet, even then, it must be remembered that the contract does not read, “No arrival, no sale.” It is specifically a release only of the seller. However that may be, the Chifiku Maru was not lost, and was in no danger of loss, and the case seems to be within Thornton v. Simpson, supra, as well as the decisions on this contract of Mr. Justice Sawyer and Mr. Justice Shoemaker. If these be right, the seller could substitute, unless because the West Cheswald being nearer port, was less likely to be lost. That appears to me a fanciful distinction, even assuming that the seller would not have had the right to put another cargo to the buyer, had the Chifiku litaru been actually lost. Hence I should think that, even if the seller had made an unconditional declaration, if Thornton v. Simpson, supra, be still law, he might substitute as he did, the buyer’s position being in effect unchanged.
But the seller never made an unconditional declaration and the point does not arise. In his letter of August 30th, he expressly reserves the right to substitute another vessel. This he had the right to do, because he was only to declare “later.” His letter amounted to saying that he then intended to ship by Chifiku Maru and Washington Maru, but might later decide to ship by another vessel. The buyer, having no right to a declaration at any given time, lost nothing by this. Nor did his letter of September 29th change this situation. The only “declaration” under the contract was on August 30th, “We hereby declare,” etc. The second merely specified the time of sailing of the Chifiku Maru, already provisionally declared. It-is to be read with the first letter, and is not to be taken as modifying its terms. The first alone was an act under the contract. On December 13th, when the substitution was made, I think the reservation contained in the original declaration was still in effect.
As to the custom pleaded in the twenty-ninth article of the answer, it seems to me so clear that it does not contradict the contract, tnat I need do no more than allude to it.
The defense is entirely good in law, and the motion is denied for that reason.