aple to suppose that the new railway would have gradually gathered strength and eventually obtained a fair traffic and become a paying property. The bill is dismissed.
CAMDEN IRON-WORKS '!1.
(Oircult Oourt, D. Nf/IJJ Jersey. D!,cember 14, 1887.)
An order. otherwise complete, to a manufacturer of iron pipe for a large quantity of that material, given and accepted August 27.1884. was in writing, and concluded in these words: "The entire delivery to be completed within - - weeks from date. We will wire you to-morrow in confirmation of these deliveries." Held, in an action by the manufacturer to recover damages for refusal of the buyer to accept the pipe when delivered, that a conversation between the parties had on August 27th prior to the execution of the contract, Rnd subsequent correspondence by mail and telegraph, were admissible to show that the blank was to be left until the buyer, who was under a contract to furnish the pipe with a per diem penalty, had ascertained what his limit was, and that he then was to, and did the next day, wire what was to go in the blank, viz., the word "nine." One who was under" a contract with a per diem penaltl to deliver iron pipe to a city, gave a written order to a manufacturer. which was accepted the same day. The time of delivery was left blank, but the understanding of the parties was that the buyer wad to telegraph the date the next day, which he did, fixing the delivery "within nine weeks from date." The order was then entered by the manufacturer. The buyer wrote from time to time urging the speedy prosecution of the work, and finally. when the period was more than up, rescinded the order as to all pipeil,ot then delivered. Held, in an action by the manufacturer for damages for refusal to accept, that time was of the essence, and that the manufacturer, having entered the order after the blank was filled, was bound thereby, and could not recover.
2. SAME-PERFORMANCE-TIME OF THE ESSENCE.
At Law. Trial by the court without a jury. S. H. Grey, for plaintiff. fJortlandt Parker and David McOlure, for defendant.
WALES, J. The plaintiff brought this action to recover damages from the defendants in consequence of their refusal to accept and pay for a certain number of cast-iron water-pipes which they had ordered to be manufactured and delivered by the plaintiff. The contract between the parties was in writing, and in these words:
"Oamden Iron- Works, Phila.-GENTLEMEN: "Please enter order for 800 lengths 12 in. cast-iron water-pipes
-To conform ill all respects to the specifications of the V.l'. W·· city of New York. "Prices,6 in., $32.22; 12 in., $30.45 per ton of 2,000 lbs., delivered on dock N. Y. city. .. " "Delivery. You to commence making the 6·in. pipe immediatelyfollowing execution of order now in your books from N. Y. cit)', and to commence rnak·
CAYDEN mON-WORKS V. FOX.
lng the 12 in. on completion of 12 In. order now in hand from Boston. The entire delivery in ,New York to be completed within - - weeks from date. We will wire you to-morrow in confirmation of these deliveries. "Yrs., Fox & DRUMMOND. "Accepted: WALTER WOOD, Prest. Camden Iron-Works." This order and acceptance were written in the office of Camden IronWorks, in Philadelphia, and dated the 27th of August, 1884, and the contract was complete with the exception of filling the blank space next preceding the word" weeks." Parol evidence of the conversation had between Mr. Wood and Mr. Drummond on the 27th of August, and prior to the signing of the paper of that date, was admitted to explain a latent ambiguity, namely, the purpose of the blank space, and meaning of the words, "We will wire you to-morrow in confirmation of these deliveries." Subsequent correspondence by letter between the parties was also admitted for the same reason. From this evidence it appeared that Mr. Wood and Mr. Drummond, during their interview on the 27th of . August, and preceding the signing and acceptance of Fox & Drummond's order, were unable to agree on the time within which the pipes should be delivered in New York, and this was left open until Mr. Drummond could ascertain, on his return New York, the utmost limit of time that could be allowed. Fox & Drummond were under a contract to furnish water-pipes for the New York department of public works within's specified time, and were liable to a penalty of $50 for each and every day's delay in the fulfillment of that contract. Having discovered the time when their contract with New York would be up, Fox & Drummond sent to the plaintiff a telegram and a letter, of which the following are copies: "NEW YORK, August 28,1884. (Telegram.) "R. D. Wood & 00., Phila.: We confirm yesterday's order N. Y. pipe, inserting the word · nine.' Fox & DRUMMOND." , (Letter.) "NEW YORK, August 28,1884. "R. D. Wood & 00., Phila.-GENTLEMEN: We Wired you confirming order given yesterday for the New York pIpe. Please insert the word' nine' in the blank space before the word ·weeks.' This will make the letter writer gave you complete. Fox &; DRUMMOND." The defendants again wrote to the plaintiff, under date of September 1,1884: "GENTLEMEN: We wrote you on August 28th, confirming our telegram of same date re New York pipe, and presume same duly reached you, and thst all is satisfactory. Fox &; DRUMMOND. It The plaintiff replied to this on the next day: "GENTLEMEN: We have yours of the first instant at hand, and have entered your order for 6 and 12 inch pipe," etc. As early as September 20th, Fox & Drummond wrote to plaintiff: "GENTLEMEN: Please advise definitely when you will commence on the N. Y. pipe. We expected you would commence by this time. The delivel'y must be on time."
202 this p.laintiff replied,: on the 23d: : 12's'atMillville on Thursday, September 25th," "We shall turn onto -But without making t<> the tinie of delivery. The defendants wrote again on theJ23li ,September "GEN'fL;Il:MEN: We are the letter of September 20th,relative to the,:N. Y. pipe. You wUloblige,by wiring us to-lllOrrow on the subject in case you 'have not alreAdy written us. This is important." October 8th Fox and to plaintiff: "If there is going t<,J on our order we should know it at once, as a matter of justice tous;'alld thus have an opportunity of transferring some portion of the orderto some foundry that will deliver the pipe at once,altd so enable us to carty out' our contract, with N. Y. city." October, 10th & Drummond informed the plaintiff by letter that there was time then left iii which to complete the order, and that no extension would be grantedj and on October they notified the plaintiff that no pipe would (be accepted by them after that day" under "the contract of August 27th. 'Only49}>ieces of 12"inch pipe were delivered in New y,prk within the Jiineweeks, and these were paid for. Acceptance ,of sent ,after tiri'le' 'Yas refused. The nine weeks ended on the 29th 'of October. rhe plahlt'iff did not enter the order of August 27th until: ,after the receipt of the :telegram and letter from the defendth'e insertion bftheword "nine" in the blarikspace. It ants was, at.thlit .moment, optionll.lwith' the plaintiff to have accepted or ref?sed. of deliveri. insi,ste<i on by thl;l Ifthe plaintiff dld not mte;nd to be. held 'foan. expresslyhmlted hme for dehvery, the defendants should have beeD f1'anklyand promptly informed of such intention, so that they could have looked elsewhere for the needed pipes. But this:wa:snot done, although on September 2d plaintiff wrote to the defendanf.s,"Have.entered )'Otlr order for 6 and. 12 inch pipe," and thus led the latter to believe that their instructions had been'obeyed, and that the tiilie for delivery stipulated for by them had been. made a part of their order. , In view, of'these facts, the court finds that the' order. of August 27th was incoijlpJeteuntil;theblank space had been filled up according to the meaning of the words, "We will wire you to-morrow in confirmation of these deliveries j" and that sent to and receiV'ed by the plaintiff on the following day, directing how the blank should be filled, was made a part'of thecontractjAhatthe absence of any ol?jection by the plaintiff to the insertion 'of the word "nine" after the receipt of the telegram and letter of the 28th of AUftust, was evidence of acquiescence in the terms proposed by the defendants; that the plaintiff had 110 authority to enter the order of August 27th without filliug in the blank as directed by the defendants, and ",as consequently without authority to manufacturetbe pipe and defendants therefor, unless. the .te,rms of delivery, as stipulated for. by the defendants, were complied ,.with. No parol evidence can belJ.qIllitted to vary or explain a written oontract, except in case of fraud, mistake, or latent ambiguity. Here there was no fraud or mistake in the inception of this order, but there
BA.BsON 'V. ROBERTSON.
was ltn it,llS originally written; which required to be removed before the contract between the patties could be rightly interpreted,and for this purpose only was testhnonydeMrs the written agreement received. Under the operation of this rule, the larger portion of plaintiff's testimony was excluded. The plaintiff having failed to deliver the articles contracted for within the time limited for their delivery, there can be no recovery in this action, and judgnient must be entered for the defendants for costs.
BABSON '11. RoBERTSON I
(Circuit Court, 8. D. New York. January 25, 1888.)
CuSTOMS DUTIES-CHARGES AND COVERINGS-ACT OF 1tIARCH TAKING EFFECT. .
Section 7 of the tariff act of March 8, 1883, repealing the statutes which pro.vided for duties on charges and coverings. and prohibiting the assessment of duties on such charges and coverings, did not take effect until July 1, 1883. (SyllabU8 by tke Court.)
At Law. Action to recover back custom duties. The during the period between March 3. and July 1, 1883, made various importations of Portland cement,from Germany. The goods were invoiced, and entered for consumption as "free 011 board," and the invoice and entered value included packing and transportation charges. The collector assessed a duty of 20 percent. upon the entered value, including charges, and refused to receive or consider new consular invoices in which the charges were separately stated. This action was brought to recover the duties assessed upon the charges. At the close of case counsel for defendant moved for the direction of a verdict in favor of the defendant, on the ground that the duties had been properly assessed by the collector, and that, at the time the goods were entered, charges were dutiable by law, inasmuch as section 7 of the tariff act of March 3, 1883, abolishing duties on charges, did not take effect until July 1, 1883. Hartley &: Coleman, for plaintiff. Stephen A. Walker,' U. S. Atty., and W. Wwkluim Smith, Asst. U. S. Atty., for defendant.
LACOMBE, J., (orally.) Of course ar.ts take .effect from the day of their passage, unless the law-makers express the intention that they shall take effect at some other time. This particular act of 1883 provides particularly, as to different parts, especial dates upon which those parts shall take eflect. It is now contended that the use in section 7 of the word "hereafter" is conclusive and controlling of the question, and determlnAs that, as to the provisions embodied. in that section, the act was to take