Heron v. Davis — 16 N.Y. Super. Ct. 321

Majority

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Alexander Heron and William J. Martin, Plaintiffs and Appellants, v. Charles A. Davis, Sydney Brooks, and Theodore Dehon, Defendants and Respondents.

Headnote

The defendants in Hew York on a negotiation for the sale of coals which were then at sea on a vessel bound for Panama, received from the owner the bill of lading and agreed to forward it to their correspondents at Panama with instructions that if the defendants’ engineer on board their steamship W. Scott or Cortez “ approves their quality for use on board that vessel they are to receive the same,” and also that “ on learning that the coals are approved by our engineer at Panama, we shall be prepared to pay you,” &c., the price being named. A memorandum at the foot of this agreement stated the coals to be 200 tons Blackheath, 67 6-20 tons of Wyoming. The engineer at Panama did not approve of the coals but certified that the coal “is not suitable for steamship’s use on this coast, it being too hard to burn without the aid of blowers.” Held:

1. That the defendants were not bound to receive or pay for the coals.

2. Proof that Blackheath and Wyoming coals were always hard coals arid of uniform hardness did not alter the case.

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3, It was not the duty of the purchasers to put blowers into their steamships to adapt them to burn hard coal.

4. The question by the agreement referred to the engineer had reference to the fitness of the coals for use on the defendants’ ships, and not merely to their quality in the sense of being good or bad of their kind.

(Before Woodruff and Pierrepont, J. J.)

Heard, March 8th;

decided, July 3d, 1868.

This action was tried before Mr. Justice Slossoh and a jury the 20th day of October, A. D. 1857, and on the trial the complaint was dismissed on the ground that no cause of action was proved.

The plaintiffs sued as assignees of one Samuel Churchman to recover the loss sustained by him in consequence of the refusal of the defendants to accept at Panama, in New Granada, and pay for certain coals claimed to have been sold by Churchman to the defendants.

The facts were briefly these:

On or about the 1st of June, 1852, the agents of Churchman shipped on board a vessel called the Z. D., chartered by himself and bound for Panama, a quantity of coals. The vessel left New York for Panama on the 14th of June and arrived at Panama about the 14th of October, 1852.

In September, Churchman had a negotiation with the defendants, which resulted in a contract, which was contained in a writing in the words following, that is to say:

“ New York, September 24th, 1852.

“ Mr. Samuel Churchmajst :

“Dear Sir—We have received from you B. L. 267/5 tons coals, shipped by Marston & Power on board the bark Z. B., Bassett master, for Panama, consigned to order-; bills of lading dated the 1st June, 1852, indorsed to you, and subject to a freight of $3,490.10. These we are to forward on the 5th October to our correspondents at Panama, Messrs. Garrison & Frite, stating to them that if our engineer on board the W. Scott or Cortes approves their quality (for use on board that vessel) they are to receive the same;; we paying for said coals at and after the rate of $25 per ton, say twenty-five dollars per ton delivered at Panama, the delivery to be made from

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alongside vessel. On' learning that the coals are approved of by our engineer at Panama, we shall be prepared to pay you sixteen hundred dollars on account, and the balance will be -payable here upon notice of the quantity received by our agents at Panama, less the amount of freight money due and payable at Panama, say $3,490.10.

“ If the quality or condition of these coals be not approved by our engineer as herein stated, we shall hand our shipping documents to your agents, agreeably to your instructions. Should by possibility the coals haye been landed at Panama, any extra expense as compared with that, incident to our receiving, them • from alongside ship, shall be chargeable to you.

“ Respectfully yours,

“Davis, Brooks & Co.”

“ The coal above referred to is

“ 200 tons Blackheath,) -r, 1

-r, 1 67^ do. Wyoming, | Pennsylvania.

“ It is understood the Z. D. sailed June 16th, and that there ' are no tidings of mishap to her.

“Should our engineer not be in port in time to examine the coal, Garrison & Fritz will appoint a substitute; the coal to be' delivered alongside hulk or otherwise, as Garrison & Fritz may appoint.

“D. B.'&Co.

“ I agree to the above.

(Signed) “ Samuel Churchman.”

After the arrival of the vessel at Panama, the coals were examined by the engineer designated for that purpose.

. The result of that examination appears in a certificate signed by the engineer, as follows:

“ Taboga, Nov. 4th, 1852.

“ I have examined the coal on board the ship Z. D., at this place, and in my opinion it is not suitable for steamships’ use on this coast, it being too» hard to bum without the aid of blowers,

• (Signed) “A. J. Shepard,”

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The agents of the defendants thereupon refused to receive the coals, and, after some delay, the coals were sold at auction on account of whom it might concern, and produced $1,740.88, which was received by Churchman, January 17th, 1853.

The plaintiffs proved that Blackheath and Wyoming coals are hard or anthracite coals, and are and have been so known in the trade and in commerce for many years.' That each of these kinds of coal are always of a uniform degree of hardness; that they differ from other kinds of hard coal in this respect that there is this general character to these coals, that they are uniformly of the same degree of hardness, and the coal dealers understand this. That in respect to hardness, coals of the two kinds mentioned are always the same; though different cargoes may differ in regard to size of the coal, and also in regard to freedom from dirt and slate.

It was also shown that the defendants’ steamships, W. Scott and Cortes, had no blowers. That there had been about 80 tons of anthracite coal burned on the W. Scott. This was of the softest kind of anthracite or Lackawanna coal; with that exception she burned bituminous coal. That those steamers were not adapted to burning anthracite coal on the Pacific coast. Whether the Cortes had ever burned anthracite coal or not was not shown. The reason why the W. Scott required bituminous coal was that, being without blowers, her draught was not sufficient to make the steam necessary to- keep up her ordinary speed.

On the defendants’ motion, the Court dismissed the plaintiffs’ complaint.

The assignment by Churchman to the plaintiffs was duly proved.

The plaintiffs moved for a new trial at Special Term, which motion was denied, and judgment was entered for the defendants.

The plaintiffs appeal, from the order denying a new trial and from the judgment, to the General- Term.

James W. Gerard, for-the plaintiffs (appellants).

I. The coal in question, being of the kind known in trade and commerce as hard or anthracite coal, and of a uniform degree of hardness, and bought as and for such, by the technical

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names of Blackheath and Wyoming, the defendants could not reject it because it was hard coal.

H. The certificate of rejection, coupled with the answer to the second cross-interrogatory by Shepard, shows it was rejected because it was hard coal, and not soft or bituminous coal, which the proof shows is an article of a distinct kind, and so well known in trade and commerce.

III. The defendants did not pretend to reject said coal on the ground of its being of an inferior or unsuitable quality of Blackheath and Wyoming coal, or on account of its condition; but substantially because it was hard coal, the reason given being “ that it is not suitable for steamships’ use- on this coast, it being too hard to burn without the aid of blowers.”

Such an objection they are estopped from making under the contract.

I. A strict if not a literal compliance in the certificate with the condition in the contract is required. The right of rejection reserved was for quality or -condition only, and the certificate does not say anything against the quality of the coal or the condition which it was in.

2. The certificate is too general; it does not, as the contract requires, specify its unfitness for use on the two steamers (the Scott and the Cortes) therein mentioned, but embraces all the steamers on that coast.

Non constat that the coal was ever examined in reference to these two steamers at all.

3. The ground of rejection, specifically assigned, is a ground which defendants had no right to take.

It appears that neither of the steamers in question had blowers, and that hard coal cannot on that coast be used on steamers without blowers.

The alleged unfitness was caused therefore not by any unfitness in the coal, but in the equipment of the defendants’ steamers, for which they should have provided.

When we sold them hard coal for use on steamers on the Pacific coast, where, as the evidence shows, it can only be burned in steamers having blowers, we had a right to suppose, that the vessels for whose use it was intended, were supplied with the requisite machinery to burn it. The absence of such

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means should no more furnish an excuse for not taking coal which the evidence shows could only be so used, than the absence of the vessels themselves.

IV. This therefore was a conditional sale, reserving only to the purchaser the power to reject the coal, not for its character as to hardness, but only for being of bad quality, i. e., too much slate or dirt mixed with it, or for the condition in which it might arrive, damaged by water, or having an undue proportion of dust or fine coal.

D. B. Eaton, for the defendants (respondents).

I. The defendants agreed to take the coal, if their engineers on their said vessels approved the coal for use thereon.

II. The coal came, was examined, and was found not fit, and was refused under the contract.

III. It is clear that the defendants did not pretend to judge of the fitness of the coal, and that both parties intended to refer that question to the engineers.

TV. The defendants only wanted coal suitable to burn on those vessels, and the coal had not been shipped on the faith of any promise to take it, made by the defendants. The coal was shipped in June, 1852, and the contract of sale was not negotiated till September, 1852.

V. It was necessary for the plaintiffs to show affirmatively that the engineer did approve the coal.

VI. It was, on the most unfavorable construction for the respondents, only a conditional promise to take the coal if approved; and the absolute right to refuse, if the engineer-decided it to be unsuitable, was reserved by the contract.

VII. The engineer decided the coal to be unsuitable..

VIII. .The testimony proves it in point of fact to- have been unsuitable, independent of the opinion of the engineer..

By the Court.

—The determination- of this appeal depends upon the true construction and- legal effect of the written contract, contained in what is in the form of' a letter from the defendants, dated New York, September 24th, 1852, addressed to the assignor of the plaintiff, and by him assented to by memorandum underwritten.

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To the correct interpretation of that letter, it is not only competent but material to take into view the condition of the parties and of the subject of the contract at the time the agreement was made. The circumstances in which the parties were acting may and ought to be considered, and when the true intent and meaning of their agreement admits of any doubt, those circumstances may furnish the key to their true meaning; and it is hardly necessary to add, that when the terms of the agreement, construed by the light thrown upon the subject by the condition and circumstances under which the parties were acting, enable us to determine the true intention of the parties, that must govern.

The plaintiffs in New York were owners of steamships which were on the Pacific coast, running between Panama and California.

On the 14th day of June, 1852, a cargo of coals had been shipped by Mars ton & Power to Panama, and the bill of lading, dated June 1st, 1852, had been indorsed to the assignor of the plaintiffs. The vessel sailed on the first named day (June 14th), and had been more than three months on her voyage.

There is' no evidence that the defendants ever saw the coals, nor reason to believe that they had any knowledge of them until the time when the agreement was made.

The making of the agreement formed no part of the inducement to the sending of the coals to Panama, and their destination was in no wise changed by reason of the making of the agreement ; for the coals had been already more than three months on the voyage, and were within twenty days of their arrival at Panama when the agreement was made.

There is no evidence that'the defendants were dealers in coals beyond the mere fact, that they made the agreement in question; or that they had any knowledge of the various qualities or descriptions of coals, or their fitness for use on board of steamships, unless that is to be inferred from the fact that they owned two steamships then on the Pacific coast.

In that condition of things, the defendants received from the assignor of the plaintiffs the bills of lading of the coals, and agreed to forward them to their correspondents at Panama, stating to them thus “if our engineer on board the W. Scott, or •Cortes” (their steamships) “ approves their quality for use on board

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'that vessel they are to receive the same we paying,” &c., and “ on learning that the coals are approved of by our engineer, &c., we shall be prepared to pay,” &c. If not so approved, the shipping documents were to be handed to the agents of the plaintiffs’ assignor.

The agreement thus expressed and describing the cargo, simply by its general designation of “coals” was signed by the defendants.

By the language above cited, according to a reasonable and just construction, the parties intended to refer the whole subject' of the fitness of the coals thus bargained for, to answer the-.purposes for which the defendants made the agreement, to their engineer, the defendants evidently declining to use their own judgment at all in the matter. And had the letter constituting the agreement made no further mention of the coals, probably no doubt concerning the correctness of that construction of the .agreement would have been suggested.

But in a memorandum added to the agreement, it is stated among other additional particulars as follows:

“ The coal above referred to is

“200 tons Blackheath, 67-2-t)- do. Wyoming, 1 Pennsylvania.”

Proof being given on the trial that the coal called Blackheath and Wyoming, is known in trade and commerce as hard or anthracite coal; that both kinds are of a uniform degree of hardness; that there is this general character to this coal, and that the coal dealers understand it as well by name as by its use: and it being shown that the coal when it reached Panama was rejected on the mere ground stated in the certificate read on the trial, viz., that “ in my opinion it is not suitable for steamships’ use on this coast, it being too hard to burn without the aid of ■blowers," and that the defendants’ steamships had no blowers; it is thereupon insisted that the coal was improperly rejected; that the defendants had no right to reject the coal because it' was too hard; that the “ quality ” mentioned in the agreement had no reference to the characteristics of the coal generally, but only to its quality or condition as compared with other Blackheath and Wyoming coals, or in reference to its size, or

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freedom from dirt or slate: and therefore that, if it was in truth of the best quality of Blackheath or Wyoming coals, the defendants . were bound to receive and pay for it, however hard it was, and whether it could be used on board their steamships or not; that if need be, the defendants must fit up their ships with blowers; or at all events they could not reject the coal because they would be compelled to refit their ships■ before they could use the coals.

This is a harsh and, under the circumstances, an unreasonable construction of the agreement.

To give it plausibility even, it has to assume that the defendants, though not coal dealers, must be taken to have such acquaintance with the innumerable varieties of coals as to know that Wyoming and Blackheath coals are hard coals: and at least as hard as coals which the witnesses speak of by the term hard coal.

But recurring to the terms of the contract, it is apparent that quality for use on board their steamships was in the contemplation of the defendants. This in no wise implied that the steamships were to be altered in order to adapt them to the use of the coal, but the contrary. And “ quality ” in this connection imports adaptedness, suitableness, and fitness for the purpose specified, in their most comprehensive sense. Hay, more, the coals were to be approved of in this respect for such use by the defendants’ engineer.

The language of the instrument shows on its face this intent of the defendants; they were willing to purchase such coals as their engineer approved for use on their steamships; they wanted them for no other purpose than to use on those ships; if they were not suited to such use, they had no use for them; they provided that if not so approved, they should be placed at the disposal of the agents of the vendor, who would then carry out the design of the original shipment.

In this there was no hardship as against the vendor. He had not shipped the coal with a view to this agreement, and when the coal was disapproved by the engineer or agent of the defendants, he could and would be at liberty to prosecute, in his own way, the speculation in contemplation of which he originally shipped the coal.

The term “quality” is not necessarily to- be construed in the

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limited sense claimed for it by the plaintiff, viz., in reference to other coal bearing the same name; that is only a special and restricted meaning of the word; its proper and general meaning applied to a material subject is its “ property,” its “ virtue or particular power of producing certain effects.” It is at least equally consistent with its proper meaning, so far as it involves the idea of comparison with others, to say that it embraces all other coals in the comparison, as it is to confine it to a particular kind.

Besides, the parties here have explained the word itself by reference to the use of the coal contemplated. This undoubtedly is one restriction of the -otherwise general meaning of the term; but it is a restriction fatal to the plaintiffs’ claim; it is quality for use on board the defendants’ vessels; and, as already suggested, that must control.

Indeed, had the agreement been much more foil and explicit in describing the coal, the result must have been the same. Thus, suppose the defendants had said in terms: “We know that the coal is Wyoming coal; we know that Wyoming coal is hard coal; we know that all Wyoming coal is very hard, and of uniform hardness; nevertheless, if our engineer approves their •quality for use on board our steamships, we will receive and pay for them.”

Under the circumstances in which the present agreement was made, and looking at the object which the parties had in view, the defendants must even then have been excused from receiving the coals if the engineer had in good faith pronounced them too hard for such use.

The judgment dismissing the complaint, and the order denying a motion for a new trial, both of which were appealed from, must be affirmed with costs.

Judgment and order appealed from affirmed, with costs.