POPE V. FILLEY.
and another v.
(Oi1'ouit Oourt, E. D. Mi88ouri. October 3,1881.)
1. CONTRACT OF SALE CoNSTRUED-LEx LoCI CONTRACTus-EvmjllNCE, INADMISSIBILITY OF PAROL, TO ADD TO A WRITTEN CONTRACT-BuRDEN OF PROOF -EXPERT TESTIMONy-MEASURE OF DAMAGES.
Where a contract of sale was entered into in St. Louis, whereby the vendors agreed to ship the vendee 500 tons of " No. 1 t:lhott's Scotch pig-iron "" "" "" from Glasgow, as soon as possible," and deliver it to him in bond at New Orleans, for $26 per ton; and they shipped that amount of iron from Leith, and tendered it to the vendee, who refused to accept it, and the vendors thereupon had it sold by a broker for all it would bring, and sued the vendee for dam. ages,-held, (1) That the burden of proof was upon the tendors to show that they had fully complied with the terms of the contract on their part. (2) That the fact that the iron was shipped from Leith instead of Glasgow was immaterial. (3) That it was necessary for the vendors to show a compliance with the con. tract as to time of shipment, but that" shipment .. "" "" as soon as possi. ble" meant as soon as possible by any ordinary mode of transportation. (4) That. parol evidence was inadmissible to show that, by the custom of merchants, shipment should be by sail, unless it is specified that it shall be bJ .steam. (5) That the term" No.1 Shott's Scotch pig-iron," as used in said contract, should be understood as having the meaning usually given it by persons en. gaged in the iron trade in St. Louis. · (6) That evidence was inadmissible to show what, in the opinion of mer. chants and business men in Glasgow, the contract means. (7) That the vendors could not recover unless they proved a tender of iron of the quality called for by the contract. (8) That the only persons who were competent to testify as experts concerning the quality of the iron were those who had givcn the subject of manufacand testing iron special attention, and had experience in the art, and haq examined the iron in question. (9) That evidence of the manner in which " No. 1 Shott's Scotch pig-iron" is examined and marked at the foundry, was inadmissible for the purpose of showing the quality of the iron tendered. (10) That in case the vendors showed a compliance on their part with the terms of the contract, and a refusal on the part of the vendee to accept the iron, the measure of damages would be the difference between the contract price, together with interest thereon from the date of the tender,and the price for which the iron was sold, less the ordinary and usual commission paid brokers for negotiating such sales.
MCCRARY, C. J., in ruling upon objections to portions of depositions oJered in evidence by the plaintiffs, said: I have considered the objections to certain portions of the depositions of 'Yitnesses sworn on ·behalf of plaintiffs, and my conclusions may be stated generally as follows v.9,no.2-5
Plaintiffs sue the defendant upon a written contract, and allege lihat the defendant has failed to comply with his obligations as expressed in that contract. The contract is very brief, and is in the , following words:
"SALE MEMORA..1IIDUM. "ST. LOUIS, February 20, 1880. "Thomas J. Pope & Brother, New York: Have sold for your account to Mr. O. B. Filley, in St. Louis, 500 tons No.1 Shott's Scotch pig-iron, at $26 per ton, cash, in bond at New Orleans; Shipment from Glasgow as soon as possible; delivery and sale SUbject to ocean risks. MILLARD & COMBS." "Yours, truly,
This is the contract. The allegation of the plaintiffs here is that, in pursuance of that contract, they caused to be shipped the iron . mentioned in that contract, of the quality described, and within the time required, which iron was, they allege, delivered in New Orleans in bond, in accordance with the agreement, a.nd tendered to the defendants, who refused to take it. There is no dispute about some of the questions which are involved in this case. The execution of this contract is admitted. The shipment of 500 tons of iron from Leith to New Orleans is admitted. The tender of this iron to the defendant is admitted, and his refusal to accept is admitted. The principal controversy arises upon the question whether plaintiffs themselves have fully complied with the terms of their agreement, and that is the question for you to determine upon the facts in the case, in accordance with the law as the court will give it to you. I say to you, however, as preliminary to that, that if it appears from the proof, to your satisfaction, that plaintiffs did comply with the contract on their part, and that the defendant refused to take the iron after the plaintiffs had so complied, then it was the privilege and the right of the plaintiffs to sell the iron in the market for the best price it would bring, and to charge the defendant with the difference between what it brought in the market and the price which he was to pay for it. I believe there is no dispute, either, as to the price the iron brought. It was sold, I think, according to the testimony, at $15 per ton. The price named in this contract was $26 per ton; so if you find that the plaintiffs did comply with their part of this agreement, in all· its material provisions, and tha.t-, notwithstanding that compliance, defendant failed to accept the iron when it was tendered to him; your verdict would be for the plaintiffs, and the amount olyour verdict
would be the difference between the price at which the iron was sold, to-wit, $15 per ton, and the contract price, $26 per ton; also, in addition to that, the reasonable expenses of the resale, which would be the ordinary and usual commission of the broker, not necessarily the sum that was agreed on between the broker and these plaintiffs, because that would not bind the defendant, but the ordinary and usual commission would be all that could be recovered. Mr. Hitchcock. There is no dispute about that; I will say 2t per cent. Judge McCrary. Which would be, according to the testimony here, 2t per cent. on the amount of the sale; so your inquiry here, gentlemen, must be simply into.the question of whether these plaintiffs complied with the contract upon which this suit is brought. One of the provisions of the contract is that the iron was to be shipped from Glasgow, and 1 instruct you, as a matter of law, that that is not a material provision of the contract so far as this controversy is concerned. The purpose of the contract was the sale, by the plaintiff to the defendant, ·of a certain quality of iron, to be delivered in a certain time, at a certain place, and the fact that it was shipped from Leith instead of Glasgow is not material to the rights of the parties in this Case if the other provisions of the contract were all complied with; so that that provision of the contract need give you no trouble. !tis agreed here, and not questioned, that the iron was shipped from Leith instead of Glasgow. . Another provision (,)f the contract is that the iron should be shipped as soon as possible, and upon this there has been some controversy, and it will be for you to decide whether, under the evidence, the iron was shipped by the parties in Scotland, who acted on behalf ofthese plaintiffs, as soon as possible after the order was received. The meaning of that clause of the contract is that these parties weI'e to use all reasonable diligence to ship as soon as possible. The time in such a case is of course important, and it was especially important in this case, becauSf3 the parties saw fit, in their contract, to say that the iron should be shipped as soon as possible; but, if it was shipped by the first conveyance that could be had, and due diligence was used, then· that part of the contract has been complied with. The main controversy is, as you have already seen in the course of the testimony, as to whether the iron which was shipped to New Orleans and tendered to the defendant was of the quality designated and described in the contract, to-wit, No.1 Shott's Scotch pig-iron.