NEW BRUNSWICK & CANADA R. CO. V. WHEELER.
377
of thece grounds exist the remedy of the creditor is at law; and equity will not assist him until that remedy is exhausted. The remedy at law cannot be exhausted by the recovery of a judgment in a foreign jurisdiction, and by fruitless efforts to enforce it there. Except as a binding adjudication between the parties upon the subjectmatter of the suit, the judgment of one of our sister states has no operation here upon the rights or the remedies of the parties to it. It cannot be a foundation for a creditor's bill here any more than: a judgment recovered in England or in Canada. It must be sued over here before it becomes a judgment for the purposes of any remedy here at law or in equity. conclusion is reached with less reluctance in view of the practical objections which would exist if foreign judgment creditors were permitted to resort to this jurisdiction to remove obstacles in the way of their legal remedies. obstaeleB always exist in the jurisdiction where the judgment is obtained. Frequently their removal involves the consideration of the force and effect of remedies and rights created by local law, which are more appropriately adjudicated by the local tribunals. The present case affords an illustration in point. This court is asked to examine into a fraudulent perversion of the proceedings of a court of a distant state, and set aside transfers based upon these proceedIngs, when the actors, the transactions, and the property are all within that state. Such a jurisdiction should not be willingly assumed. The demurrer is sustained.
NEW BRUNSWICK
&
CANADA
R.
Co.
v. E. 8.
WHEELER
(Oircuit Oourt, D. Connecticut. 1.
June 8, 1882.)
CONTRACT EXECUTORY-PERFORMANCE-REPUDIATION.
In an action on a contract to deliver goods, the plaintiff performs, the defendant having continuously called for execution of the contract, it is not competent .for the latter to refuse to accept performance; but if, upon notice by the promisor of an executory contract that he will not perform, the promisee accepts the situation and treats the contract as at an end, the promisor cannot afterwards, by changing his mind, compel the promisee to accept performance. 2. SAME-RIGHTS OF PROMISEE UNDER. The promisee may treat the notice of intention M inoperative and await the time when the contract is to be executed, and then hold the other party re. sponsible for the consequences of non-performance, remaining subject to all
378
FEDERAL REPORTER.
his own obligations under it, or he may treat the repudiation of the other partiy as a wrongful putting an end to the contract, and may at once bring his action on a breach ,of it for such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.
J"ohn W. Alling and Chas. R. Ingersoll, for plaintiff. John S. Beach and Edward J. Phelps, for D.J.! This is an action at law which was tried by thecouft, }?arties having waived a jury trial by the written stipula, tion which is a part of 'the record. The facts in the are found to be true, the testimony which was objected to, the rulings. of the court upon said objections, and the exceptions to said rulings', are as follows: -, The averments of the complaint in regard to the citizenship, residence, incorpQration,a,nd partnership of the respective parties are true. The New Brunswick & Callada Railroad Company is a corporation which owns and manages a railroad running from St. Stephens, in New Brllnswick, to Holton; ihthe state of Maine, a distance of about 100 miles. At the time of the transactions hereinafter mentioned the corporation had eight directors, who owned nearly all of the capital stock of the company. At theorganization of the company, a few years ago, there were but eight owners. The business of said directors was transacted very often without the formality of votes, but by verbal instructions to the president, and more after the manner of a partnership than of a corpo'ration. In 1878 the directors commenced to relay the road with new steel rails, and 1,000 tons were bought for that purpose. On July 24, 1879, the directors passed the following vote: "Resolved, that the president be authorized to purchase 2,000 tons of steel rails, if he deems it advisable to do so." Negotiations for this purpose were thereafter commenced, which resulted in a contract, executed about Feburary 6, or 7, 1880, with an English firm for the purchase of that amount of steel rails. They were to arrive some time thereafter. As reliance was placed upon the money to be obtained from the sale of the old rails for the payment of tbe new, the directors of the corporation, in conversations and by verbal instructions given from time to time before the completion of said contract, both at directors' meetings and at oceasional interviews elsewhere, but not by vote passed at any meeting, verbally authorized and instructed their president to sell the old rails belonging to said company and then upon the road-bed, and gave him full authority to do whatever was necessary for that purpose. When Mr. James Murchie, the vicepresident of said company, was about to leave St. Stephens for New York and the eastern cities in January, 1880, upon business of his own, the president gave him express instructions to sell said old rails, the approximate weight of which was well understood, for 75 tons of old rails would be taken up by the laying 100 tons of new rails, and iil pursuance of said instructions said Murchie, as vice-president of the company. entered at Kew Haven on January
NEW BRUNSWICK & CANADA R. CO.
v.
WHEELER.
379
31, 1880, into the written contract with the defendants for the sale of 1,000 tons, and also for the sale of 200 to 600 tons, which contract is contained in plaintiff's Exhibits 1 and 2 hereto annexed.(a) On February 16, 1880, at a meeting of the directors oftha plaintiff corporation. the following votes were passed: .. Resolved, that the contract made by Mr. Murchie with Messrs. E.' S. 'Wheeler & Co., of New Haven, be agreed to; a memorandum to this effect to be furnished to Mr. Murchie, to be forwarded to Messrs. Wheeler & Co. [After discussion upon another sUbject:] .. Resolved, that the following sale of old rails made by Mr. James Murchie to Messrs. E. S. Wheeler & Co. be confirmed: .. Sold E. S. Wheeler & Co. 1,000 tons of old rails for delivery in New York or New Haven, at their option, before August the 1st next, at thirty dollars ($30) per ton of 2,ooOlbs., the duty to be paid by Wheeler & Co., and also 200 to 600 for delivery in New York or New Haven, between August 1st and October 1st, at twenty-eight dollars ($28) per ton of 2,000 lbs., the duty to be paid by Wheeler & Co. "In each case, cash against invoice, bill of lading; insurance policy in satisfactory company." On February 17, 1880, Mr. Murchie sent the defendants the letter hereto annexed, marked Defendants' Exhibit B.(b) On February 28,1880, the defendants replied to said letter of Murchie, and sent to him, as vice-president, the letter hereto annexed, marked Defendants' Exhibit D.·(c) which letter was duly received, but to which no reply was made. No other communication, verbal or written, passed between the plaintiff and defendants until about June 10, 1880, when Mr. Murchie called upon the defendants and asked them whether they would have those rails delivered in New Haven or New York, and said that the defendant was ready to deliver them, and that. the tons were to be 2,240 pounds each. The defendants declined to receive any rails upon the ground that the plaintiff. had repUdiated the contract of January 31st, or that it had ceased to exist by the plaintiff's act. The plaintiff thereupon sent the defendants the letter of June 14,1880, hereto annexed and marked Defendants' Exhibit E,(d) to which the plaintiff replied by letter of June 15, 1880, hereto annexed and marked Defendants' Exhibit F.(e) On June 30,1880, the plaintiff tendered in fact, under the contract of January 31, 1880, to the defendants a cargo of old iron rails of about 65 tOllS, of 2,240 pounds to the ton, at the city of New Haven, and the defendants declined to receive the same, or to say whllre they should be delivered, whether at New Haven or New York, or to give any instructions whatever on the subject. The plaintiff, on August 10, 1880, sent to the defendant the letter of that date, hereto annexed and marked Plaintiff's Exhibit 3,(/) to which the defendant replied by letter of August 21, 1880, hereto annexed and marked Plaintiff's Exhibit 4.(g) AU the letters hereinbefore mentioned were duly and seasonably received by the respective parties to whom they were sent. (4) See 1'081, a84. {b) Jd.
(c) Yd. 386. (a)Id.386.
(.) Yd. U) Id.
(,) Yd. 387.
380
The defendants never received, but always, after June 10, 1880, refnsetl to reCNye, any of said 1,000 tons, or of said 600 tons, either at the city of Xew York or at New Haven, althongh the same Were duly and properly tendered to them 011 June 10th, ,Tune 14th, June 30th, and August 10th. The plaintiff had at said respective dates, and before August 1, Itl80, 1,000 tOilS of rails for delivery under the contract of January 31, 1880, and also had 600 other tons of rails between August 1 and October 1, 1880, for delivery under said contract, and was, at said respective dates upon which tender was made, able, ready, willing, and anxiQus to deliver said iron, and to comply with the contract of January 31st by the delivery of 1,000 and 600 tons, of 2,240 pounds each. It was agreed (snbject to the plaintiff's right of objection to the admission of evidence to prove the same, to which evidence and to the proof of which fact the plaintiff dnly and seasonably objected upon the ground that the statntes hereinafter quoted show the meaning of the word" ton," but ,the court admitted the same, to which ruling the plaintiff duly and seasonably objected) that a ton of iron rails or other scrap iron, when contracted for, or bought and sold in the markets of the cities of New York and of New Haven, by the uniform usage or custom of those markets', means, and on ,Tanuary 31, 1880, meant, a ton of 2,240 pounds, unless the term of the contract evidenced a different meaning upon its face. The statute of the state of Connecticut, in force on January 31, 1880, and still in force, provides as follows: "In the sale of articles by avoirdupois weight, 100 pounds shall constitute a hundred weight, and 2,000 pounds shall constitute a ton; and the aliquot parts of a hundred weight and of a ton shall be reckoned accordingly." By the statutes of New York, Maine, and the dominion of Canada, in force upon January 31, 1880, and still in force, 2,000 pounds constitute !Y ton. The parliament of the domiilion of Canada has control of weights and measures throughout the dominion, and its statute provides that every contract made in the dominion for any merchandise agreed for by weight or measure shall be deemed to be made and bad according to one of the dominion weights or measures, ascertained by said act, and if not so made, according to the metric system. On January 31, 1880, and when the contract of tilat date was entered into the said Murchie, acting in behalf of and as the agent of said by ancl company, and E. S. Wheeler, one of the defendants, and acting for said firm, each of said parties contracted for the sale and purch,ase of gross tons, in accordance with said custom, and each understood that he was contracting for tOllS of the customary weight,-that is, of 2,240 pounds each,-and each knew that the word" tons," as used in said contract, meant in his mind tons of 2,240 pounds each, and there was no misunderstanding between said persons as to the true intent and meaning of said contract. The plaintiff duly and seasonably objected to any evidence in regard to custom or usage, or the understanding of Mr. Murchie as to the meaning of the word" ton," but the same was admitted, and to said rUling the plaintiff dUly and seasonably excepted. It was agreed that the list hereto annexed and marked Plaintiff's Exhibit
NEW BRUNSWICK It CANADA R. CO. V. WHEELEB.
881
No. 6* correctly shows the market price per ton of old iron rails in the markets of the cities of New York and New Haven, at the dates respectively as given, and that a ton of auch rails or other scrap iron, when quoted for the market price in said markets, means a ton of 2,240 poundS, the duty on sucll iron being eight dollars per ton of 2,240 pounds, and included in said market price. The damage to the plaintiff by reason of the refusal 'of the defendant to accept said 1,000 tons was the.sunl of $11,000; and the damage by reason of their refusal to accept said 600 tons was the sum of $5,400. The defendants' counsel asked Mr. E. S. Wheeler, the only defendant who made the contract or had any knowledge of the business, the f{}llo wing questiona, to each one of which the witness gave the answers respectively written in response to the respective questions. To each one of said questions, and to each one of said answers, the plaintiff objected upon the ground that it was imJ;Daterial. The question and answer No.2 was admitted to contradict a single statement in the testimony of Mr. Murchie. No.8 was admitted, as was also the other testimony in regard to the meaning of the word" tons" as used in said contract, because a decision upon the question of admissibility became immaterial in view of the plaintiff's conduct in tendering gross tons, and to avoid dispute agreeing to the defendants' construction of the contract. No.9 was excluded. The remaining questions and answers were considered to be propetly in evidence for the purpose of enabling the court to ascertain tIle effect of the silence of the plaintiff after the letter of February 28th upon ,the defendants' previous poi>ition in regard to the contract, tIle previous position having been that of affirmance. To the rulings against the objection of the plaintiff, and to the ruling in favor of the objection of the plaintiff, the defendants duly and seasonably excepted. No. 1. Beween January 21, and February 17,1880, did you have anyopportunities of disposing of the 1,000 tons of rails about which you had contracted with the plaintiff? Ans. No. I: We had repeated opportunities. 1\11', Murchie called on Saturday, January 31st, and on Monday we could have sold'the raHs for that future delivery at $4 per ton profit, and on Tuesday at $5 per ton profit. No.2. Do you know of any manufactory in New Haven which uses old iron rails? ' Ans. No.2. No. No.3. State the object for which you bought these rails. Ans. No.3. I bought these rails to sell, not to No.4. Had you other opportunities to sell these rails? Llns. No.4. We had other opportunities to sell, but these offers were firm offers, made by responsible parties. No.5. Why did you not take these offers? Ans. No.5. Because Mr. Murchie had come to us a stranger, representing a company of which we had never before heard, bringing no letter of introihl(·tion, and showing by his conversation that he was not familiar with old rails, and because he had sold them at much less than the market price of the day. I had grave suspicions whether we should get the property, and the amount involve!] was so large as to make "it ,prudent for us to in vestigate the character and responsibility of the sellers, That investigation we could not make without some delay. No.6. After the letter of February 17th did you make any attempt to sell the iron? Ans. No.6. No· . · See 1'",t, pa ge 387.
282
No.7. Could you have sold it at a profit at that time? Ans. No.7. We could have sold at a large profit. No.8. State in regard to the truth of the statements made in your letter of February 28th. Ans. No.8. The statements made in our letterof .February 28th are true. It correctly states our understanding of tbe contract. No.9. When did you first hear of'the statute of Connecticut in regard to the meaning of the word "ton P" Ans. No.9. I first heard of the statute of Connecticut about a month ago, from Mr. Beach. The statutes. of New Brunswick, (Consolidated Statutes. 750,) provide that" the contract of the agent of any corporation within the scope of' his authority and the acts of a corporation shall be valid, though not authenticated ,' by their seal." The plaintiff did not intend by its votes February 16th or by the letter of February 17th to repUdiate or abandon the contract of Jannary 31st. It did attempt by said votes to draw from the defendants a modification of said contract. The defendants did not, by word or act, prior to June 10th, change their previous position in regard to the contract, which position is stated in their letter of February 28th.
The conclusion to which I have come from the foregoing facts are as follows: 1. That the president of the company was fully authorized to take all steps necessary to sell the iron rails, although the authority was not this power to sell conferred by vote of stockholders or directors; was not limited to his personal action, but that he was also fully authorized to employ substitutes or agents, and that James Murchie was duly authorized to make the contract of January 31, 1880. 2. That the questions whether parol evidence was admissible to explain the meaning of the word "ton," as used in the contract of January 31, 1880, in view of the statutes hereinbefore specified, or whether parol evidence was admissible to alter or vary the meaning of the word from that given in said statutes, or either of them, are immaterial, inasmuch as the plaintiff, by its conduct in tendering tons of 2,240 pounds each, and by its letters of June 14th and August 10th, agreed, for the purpose of avoiding dispute, to the defendants' construction of the contract, and, in fact, admitted that the contract should be taken to mean gross tons. 3. Neither the votes of February 16, nor the letter of Mr. Murchie of February 11, 1880, can fairly be considered a repudiation of the contract, or an attempt to abandon it. The directors did not intend or want to repudiate or abandon, and no confirmation of the contract was needed, but they desired, by an apparent misunderstanding of the terms of the contract, to see whether the defendants would consent to such a modification of it as was Buggested by the addition of the words "of 2,000 pounds." But if these votes were a repudiation,
NEW BRUNSWICK & OANADA R. CO. V. WHEELER.
883
thcxIOfonda.nts, by their letter of Februa:ry 98th, insisted upon the execution of the contract according to its true intent ; and if it was then permitted to them to treat the con1;ract as at an end by reason of the disingenuous conduct of the plll.intifl's directors" they to do so, and continuously held the plaintiff to strict performance. " When the plaintiff performs, the defendant. having continuously called for execution of the contract, it is not competent for him to refuse to accept petformance: But if, upon notice by the promisor of au executory contrac't that he will not perform, the promisee a(lcepts the situation, and s,sat an en4, by treats the changing his mind, compel the promisee to accept performance. , 4. ':fhesilence otthep,laintifi, after the letter of February,,28th, siraises ,J]lor,e c1.0ubtful. questiQn ; but, I tpink, assuming tha,t on part.to, ,complete lence amounted to a notice of the contract for gross toos, that the defendants, bytlieir"conduct, treated such notice of non-intention as inoperative, and insisted upon' performance, and ca,nnot, when, the plaintiff is ready and willing to refuse to accept its tender. The natural effect of the plaintiff's silence, after the letter of February 28th, was to create great uncertainty, and to· cause consequent annoyance and pecuniary loss to the defenda1;lts. Such is not proved here, for t not regard Mr. Wheeler's answers to questions 6 !is proving any loss 'to which he was subjected by the silence of the plaintiff, but cases may easily arise where such silence would be very injurious to the other contra'Cting'party, and would be very censurable., Assuming that the defendants would have been justified in regarding this silence as a continued affirmation of the construction which was given in the vote of the directors to the contract, and as a wrongful putting an end to it, they were silent oil their part, and continued to stand on the letter of February 28th, demanding performance. .When the plaintiff performs, if the defendant has not declared by his words or conduct, in regard to the subject-matter of the contract, that it is at an end, but has kept it alive and demanded fulfilment, he is bound to accept of performance. The law on the subject is stated in a recent English case by Chief Justice Cockburn as follows:
do
"The law with reference to a. contract to be performed at a future time. wben the party bound to performance announces prior to the time his intention not to perform it, as established by.the cases of H'ochstel' v; Delatour and the Danube&: Blade Sea Co. v. renos on the one hand, and Atler1! v. Bowden, Read v. Hoskins. and Barwick v. Buba on the other, may be thus stated: Tbe promisee, if he pleases. may treat the notice of intention as inoperati V£l. and await the time .when the contract is to be executed, and then bold the
884
FEDERAL REPORTEn.
other party responsible for all the consequences of non-performance; but in that case he the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities ullder it, and enables the other party not only to complete contract, if so advised, notwithstanding his previous repUdiation of it, but also to take advantage of any supervening circumstances which would justify him in declining to complete it. On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his. action on a breach of it, and in such action he will be entitled to such damages as would have arisen from the nonperformance of the contract at the time, subject, however, to abatement in respect of any drcumstances which may have afforded him the means of his loss."
5. The plaintiff is entitled to judgment for the sum of $16,400, with 6 per cent. upon $11,000 from August 1, 1880, and interest upon $5,400 from October 1, 1880.
'PLAINTIFF'S EXHIBIT No.1. NEW HAVEN, January 'S1, 1880. James Murchie, 1!,yq., Vice-P1'esident New Brunswick & Canada RailroadDEAR SIR: We have this day bought of you, as representative of the New Brunswick & Canada Railroad Company, 1,000 tons old rails, for delivery in New York or New Haven, (at our option,) at $30, without duty, and delivery to be before August 1st, and also two (2) to six hundred tons for delivery in New York and New Haven, between August 1st and October 1st, at $28. without duty. Terms, in each case, cash, against invoice, B. L., and insurance policy in satisfactory company. Very respectfully, E. S. WHEELER & Co. PLAINTIFF'S EXHIBrf No.2. NEW HAVEN, January 31, 1880. E. B. Wheeler & Co., New Haven: We hereby accept your order of this date, and will deliver rails at price and on terms named. Respectfully, NEW BRUNSWICK & CANADA R. R. Co. JAMES MURCHIE,'yice-President. DEFENDANTS' EXHIBIT B. ST. STEPHENS, February 17,1880. Messrs. E. S. Wheeler & Co., New Haven-DEAR SIRs: I herewith enclose a copy of resolution passed at our meeting of directors yesterday. This confirmed the sale" made by me to you," by the company, which was done on my arrival home. The car wheels and chains that we had on hand were sold before I came home; we will have a large quantity by the time we ship our rails. Please acknowledge the above. Yours, truly, JAMES MURCHIE.
NEW BRUNSWIUK.& CANADA
11. WHEELER.
885
.NEW BRUNSWICB; & CANADA RAILlt0AD COMPANY.
Minute oj a Resolution Passed at a Directors' Meeting, February 16, 1880. old rails, made by Mr. James Murchie Resolved, that the following sale to Messrs. E. S. Wheeler & Co., New Haven, Connecticut, be confirmed: :' .. Sold Messrs. E. S. Wheeler & Co. 1,000 tons of old rails, for deli very in New York or New Haven, at their option,. before August the 1st next, at thirty dollars ($30) per ton of 2,000 pounds, the duty to be paid by Wheeler & Co.; and also 200 to 600 tons for delivery in New York or New.Hl,l.ven between August 1st and October 1st, at twenty-eight ($28) per ton of .2,000 pounds, the dUty to be paid by Wheeler & Co. In each case, cash, against invoice, bill of lading. Insurance policy iQ satisfactory company. "F. H. TODD, President." (True copy.)
DEFENDANTS' EXHIBIT D. NEW February 28, 1880.. James Murchie, Esq., Vice-P'residentNew Brunswick &: Oanada Rail1'oad Oompany, /St. Stfphens, Oanaila--DEAR SIR: We received duly your favor of the seventeenth instant, enclosing what purports to be a certified copy of a resolution a.dopted by the directors of the New Brunswick & Canada Hailroad Compan)' in reference to the sale of old rails made by you, on behalf of that company, to us, on the thirty-first tHtimo. We aSsume that this resolution was passed merely as matter form, and a copy has been sent us for·ouf information solely, as. no mention was made at the time of the negotiations that you acted subject to any approval by your company. We understood: then, and understand now, that the sale made at that time on behalf of your company was an absolute and final unconditional sale. We do not understand further that this resolution was forwarded to us with the vie,w of in any way ' modifying that sale in any of its terms. Furthermore, we understood at the time, and now understand,. that the number of pounds in each ton of this contract, there being no contrary specification when the contract was made, was not 2,000, but 2,240. Old rails, like othersGl"3.p and like pig iron, are bought and sold by the gross ton, not only in this market, but in every foreign market. The custom of the trade fixing 2,240 as the standard number of pounds in a ton Qf old tails is universal, and can be excluded from operating on contracts only by distinct conditions fixing some other quantity, No such conditions were mentioned in the contract of your company with us, and we look, therefore, for the delivery of the rails within the dates named in the contract of your companYl aud in " gross," not net tons. We make no doubt put that your understanding of that contract is in accord with ours, and that in Bofar as this resolution fixes a different num· ber of pOllnds for each ton, that it so fixes them by an oversight on the part of the directors. We hope to hear from you at your early convenience. Very truly yours, (Signed] E. S. WHEELER.
v.12,no.4-25
386
ftDERAL REPORTER.
E. S. WHEELER & Co. PLAINTIFF'S EXIDBIT NO.3.
69 CHUROH STREET, NEW HAVEN, CONN., August 10, 1880. Messrs. E. S. Wheeler & OO.-DEAR SIRs: By the terms of your contract with the New Brunswick & Canada Railroad Company of the date of January 31, 1880, you bought of the company 200 to 600 tons of old rails, to be delivered to you in New York or New Haven between August 1 and October 1. 1880. We now have 600 tons of such old rails ready for delivery to you, and respectfully inquire at which port, New York or New Haven, you wish the delivery to be made. In your letter to James Murchie, as vice-president of said railroad company, of February 28th last, you construe the contract as meaning that the ton of rails specified in that contract is 2,240 pounds, or the gross ton. Now, without waiving any of our rights under that contract, but to avoid dispute,
NEW
&; CANADAB. 00.
V. WHEELER.
887
we tender you the delivery of the 600 tons at gross weight of 2,240 pounds to the ton, and ask your determination whether the delivery shall be made in New Haven or in New York, or whether, in view of your action concerning the 1,000 tons mentioned in the same contract, a delivery at all shall be made. Respectfully yours, THE NEW BBUNSWIOK & CANADA RAILR.OAD COMPANY. By JOHN W. ALLING, Attorney. PLAINTIFF'S EXHIBIT NO.4. NEW HAVEN, August 21,1880. The New BrunS'W'lck & Oanada Railway Oompanll-GENTLEMEN: We have your favor of the 10th inst., wherein you ask shipping instructions for eertain old rails nnder the terms of an alleged contract with us. Upon the fifteenth of June last, in answer to a similar request from you, we stated that we did not recognize the existence of any such contract and that we therefore had no instructions to offer. Our views regarding this matter have undergone no change since our last letter on this SUbject, and we do not see that we can give you any further directions regarding the disposition of the rails named by you. Truly yours, E. S. WHEELER & Co. PLAINTIFF'S EXHIBIT NO.6.
va. E. S. WHEELER & CO. (United Stata Oircuit Oourt, Distriot of Oonnecticut. April Term, 1882.) In the above case it is agreed that the following list correctly shows the market price per ton of old iron rails in the markets of the cities of New York and of New Haven, at the dates respectively as given, and that a ton of such rails or other scrap iron, when quoted for the market price in said markets, means a ton of 2,240 poundS, the duty on such iron being eight dollars per ton of 2,240 pounds, and included in said market price. It is also agreed (subject to the plaintiff's right of objection to the admission of evidence to prove the fact) that a ton of said rails, or other scrap iron, when contracted for, or bought or sold in said market by the uniform usage or custom of those markets, means, and at the date of said alleged contract in controversy meant, a ton of 2,240 pounds, unless the terms of the contract evidenced a different meaning upon its face. NEW BRUNSWICK
& CANADA UAILROAD
COMPANY
& ALLING. Defendants reserving right to offer evidence consistent with stipulation. By JOHN S. BEAOH.
PLAINTIFFS, By INGERSOLL
388
'EDEBAL REPORTER.
PRICE 011' OLD T RAILS IN NEW YORK As REPORTED IN THE NEW YO,tK COMMERCIAL BULLETIN.
Feby.
" " " "
. .. .
4, '80. 7, '80. n, '80. 14, '80. 18, '80. 21, '80.
25, '80. 2S, '80.
March 3,' 'SO. " 10, '80; u 13, '80. 17, 'SO. 20, '80. 24, '80. " 27, '80. " 31, '80. April 3, '80. 7, '80. "
" "
10, '80. 14, '80. 21, '80. 24, '80. 28, '80.
.. Ie
" May
I, '80. 19, '80.
" II II
22, '80. 26, '80.
At 43 and 43.50. May June 42.50 and 43. 42 and 43. Ie 42 and 42.50. 42.50. " Sales oi3,OOO tons 42, to " arrive; 3,000 tons do. at a shade under 42.50. . " 42.50; steady. " 42.00; best bids 50c. to 1.00 under; we learn, " of 1,000 at 41.50, spot. 41.00'and 42.00. July Ie 40 to 41. As Jow as 40.00 for " shipt., while up' to '" 40.00 for spot. " shillings c f i; we learned of 3,000 tons " at 39.00 and 40.00. 38.00 to 39.00 37.00 and 38.00. 37.50 to 3S.50. 37.00 to 38.00. About 37.00 and 3800. About 35.50 'to 36.00 would be readily ac- Aug. cepted. Not over 35.00; cable " late this afternoon shillings. Sept. 34.00 to 35.00. 34.00 and 35.00 spot. 3,000 tons Bold at 32.00 and 33.00; lot of 250 tons at 30.00 to arrive. " About 30.00; holders' views are [email protected] " overthat;welearned of 2,500 tons sold 29 . " to 30 here. " [email protected]; 1,800 tons " at [email protected] here.. [email protected] to be full " outside quotations. [email protected]. 27.00 to 28.00 bottom figures; hear of 4,000 tons at 26.00 in Oct. store.
29, '80. 2, '80. 9, '80; 12, '80. 16, '80.
..
19, 23, 26, 30,
'SO. '80. 'SO. 'SO.
3, '80. 7, '80. 10, '80. 14, '80. 17, '80. 21, '80. 24, '80.
28, '80. 81, '80. 4, '80. 11, '80. 18, '80. 2S, '80. 1, '80..
.. ... ,.
"
4, 'SO. 8, 'SO. 11, '80. 15, '80. 18, '80. 25, '80. 29, '80.
we
2, '80.
26.00 £c::cra I price. About 20.00 ll)!' spot parceb 24 to 24.50. 24.IiO@:.!".UU, spot lots. [email protected], but the bulk of the supply held for 26.00 24.50 to 25.00. [email protected]. [email protected]. We. hear of T offered at 23.50. 24.00@2450. 23.50 to 24.50. [email protected] fair price. About 24.50. Bids of 26.00. Holders naming 26.50. It is doubtful. if,Jess than 26.00 would be accepted; as a: rule holders ask 00. About 27.00; heard of 100 tons at 2S.00 ex store. 27.00 and 27.50. [email protected]. About 27.00. About [email protected]. About 27.00. About 27.UO; holders' views about 1.00 more. l;5tock offered about 27.00. About :3'10 tons at 27.00, del'd Phil. Some lots at 26.00, but more generally asked. [email protected]. About 2Ii.00. 27.00 full outside quotation. There are huyers at 26.00 at auction; 2,. 669 tons sold at 26.25, taken bv Cleveland Holi. Mill. $2Ei to 26.50; 1,000 tons sold at $25.75.
NELSON NELSON
V. GRAFF.
889
'V. GRAFF
and others.
(Circuit Oourt, W. D. Michigan, S. D. May 29,1882.) 1. CONVERSION-TIMBER SEVERED FROM HEALTy-RIGIlT OF. ACTION.
A party may maintain an action for a chattel which hall become sueh by a wrongful severance from the realty; and the fact that the owner of realty has contracted to sell it, and that the severance of the trees was by the vendee, and that vendee held possession as licensee, licensed to cut and remove'st'anding timber on certain conditioDS, does not defeat the right of action bv the vendor.
2. .
SAME-VALUE ENHANCED-RIGHTS QF OWNER.
a.
The fact that the trees, after being severed, have been manufactured into shingles, and the value considerably enhanced, does not prevent the owner from having the chattel returned to him in its altered form. SAME--':VENDEE IN POSSESSION-As LICENSEE.
A vendee in possession of land under a contract of purchase is a tenant at will after default· in payment. So, where a party obtained possession of land under a contract of purchase with the license to cut· timber on each 40 acres as often as he paid a stipulated proportion of the pur«;lhasc l>rice, .and he made default in the payment of an instalment, the cutting of timber would bEl. a wrongful conversion, and he could not give a purchaser thereof lawful' possession of the timber.
Replevin. Taggart, Stone ct Earle, for plaintiff. Siinonds, Fletcher &; Wolf, for (1efendants. WITHEY, D. J. The testimony discloses that Nelson was owner of 160 acres of pine land, which in January, 1878, he agreed to s,Elll 9Y written contract to one Chandler for $4,800. Chandler paid at the time $1,200, and agreed to pay a like sum by November 16" 1878" June 16, 1879, and January 16, 1880, with interest. The vendor'stipulated that Chandler should have possession of the premises, but it was stated that he should not cut or dispose of any timber standing on the land except as provided in .the contract of saJe. The provision governing timber-cutting was in the following words: "And he is hereby granted the privilege of cutting, manufacturing, and disposing of timber upon 40 acres of said land, and no more, until the second payment of $1,200 and interest shall have been made, when the second party shall have the privilege of cutting and removing the timber from 40 acres more of the said land, and no more. And when the next payment of $1,200 and interest shall be paid, the party of the second part shall have the privilege of cutting and removing timber from 40 acres more, and no more." J
The payment down entitled Chandler to cut and remove the timber from 40 acres; he made a second payment of $1,200, and was entitied to cut and remove the timber from another 40 acres. HiB