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.
POPE V. FILLEY.
l'hose are the words, gentlemen, which are used in the trade, which are peculiar to the business of the iron merchant. They are not words the meaning of which persons would ordinarily understand. Men .who have no knowledge of the business of an iron merchant, or of the manufacture and sale of iron, would not be able to determine the question of what is meant by No. 1 Shott's Scotch pig-iron. Hence it is that the court has allowed testimony to be offered to you as to the understanding of iron merchants upon this subject as to the meaning that attaches to these words when they are used in the trade by dealers in iron. This contract, as you observe, was execut6d in St. Louis, and I charge you that it must be understood to have referred to the term here. It must be understood that the parties used these words with the meaning that they have among iron merchants in this city, and you have had a good deal of testimony from the witnesses on both sides as to what is meant by those words-as to what quality of iron is described by those terms. I do not propose to go into recapitulation of the testimony, such as has been given to you, but I say to you that it is for you to determine from this testimony what thOSe words do mean, as they are understood by iron merchants in St. Louis, and when you have determined that question then you are to inquire and decide whether the iron which was tendered to the defendant came up to and filled the requirement of such description. If you find that the iron which was tendered was not within this definition, No.1 Shott's Scotch pig-iron, then it does not follow the contract, and the plaintiffs cannot recover. But, on the other hand, if you find from the evidence that the iron was of the description named in the contract, as understood by the merchants here, where the contract was made, then the plaintiff has fulfilled that part of the contract, and is entitled to recover, if you find that he has fulfilled the other portions of the contract. You have before you, gentlemen, the testimony of a great number of experts on this subject. It would take a great deal of time, and be to no purpose, for me to enter into a discussion of the testimony itself. It is for you to take it all and consider it fairly and dispassionately, and determine from it whether the contract in this respect has been complied with or not. All that I need to say to you, as a matter of law, is that the burden is on the plaintiff to show that he has complied with the contract, not only with regard to the time of the shipment, but with respect to the quality of the iron which was shipped and tendered to the defendant.
The counsel have suggested some instructions, gentlemen, which I, probably, have anticipated in part, but I will refer to them. And first,on behalf of the plaintiff, I was asked to say to you as follows:
This clause did not make it obligatory upon the plaintiffs to do everything which was possible as a physical act, if such act lay beyond what shippers of iron might reasonably be expected to do. So far as the obligation of this clause of the contract is concerned it is sufficient if the jury find that plaintiffs diligently made every reasonable effort, in the usual course of commerce, to effect the prompt shipment of the iron. That, I think, is a correct statement of the rule, and substantially what I have already stated to you. Plaintiffs also request me to say to you as follows:
"The court instructs the jury that, under the contract sued upon, was the right, if not the duty, of the plaintiffs to cause the iron designated therein to be shipped to New Orleans as soon after the contract was made as they could do so by exercising all proper and reasonable diligence and judgment. "If the jury find that it was impossible for plaintiffs to obtain a vessel from Glasgow, and that it was practicable to obtain oue from Leith, and that shipment from Leith was a more expeditious way of getting the iron to New Orleans than waiting for a vessel from Glasgow would have been, then plaintiffs were justified in shipping the iron from Leith instead of Glasgow."
That is given as requested. The defendant's counsel requests the court to instruct as follows:
.. The jury are instructed that the contract sued on was an entire contract for the entire quantity of 500 tons of pig-iron of the description and grade mentioned in the contract, and the defendant was not bound to receive any of said iron unless the entire quantity so contracted for did in fact answer to the description called for by the contract."
Of course, gentlemen, under this contract the defendant was not bound to accept any part of the 500 tons unless the whole was tendered him. I do not, myself, remember any t8stimony tending to show that a smaller part was tendered. Mr. Hitchcuck. No, there is no dispute as to that; it is not as to how much was tendered. Judge llfcCrary. Very well, sir; I say that is a correct rule, at all events. I say, furthermore, at the request of defendants:
POPE v. FILLEY.
"It Is inC!Umbent upon tbe plaintift's in tbis caUAe, before the jury can find that tbe plaintf11's did fulfil the conditions of said contract on their part, to prove to the satisfaction of the jury not only that a part of the 500 tons alleged to have been tendered to the defendant by them under this centfact was of the description contracted for,'but that the whole of said 500 tons wa3 of that description. Under the contract sued on it was not incumbent upon the defendant to receive any less quantity than 500 tons of the description contracted for, and itts incumbent on the plaintiffs, before they Can recover for any part of the iron claimed to ha,'ebaep tendered by them to defendl;ln,t, to prove that the. whole of said quantity so teJldered by them was of description contracted for." "
I give you that instruction, gentlemen, with this qualification, of course: it is not necessary that tliey should prove' that every individual pig was alike. It is necessary that they should show that the lot, as a lot, came up to the description given in the contract. It is a question of fact for the jury to' determine upon the evidence before them, and under the instructions of the court, what description of iron the parties to the contract sued on meant by the term 'in the contract, viz., No.1 Shott's Scotch pig-iron. The contract having been made in S1. Louis, Missouri, any local or peculiar terms, or terms peculiar to the iron trade, which may be found in said contract, are to be understood as having whatever meaning was usually given to such terms by persons engaged in the iron trade in that city. Evidence has been introduced tending to show what is the meaning . of that phrase, according to the usages of that trade in this market, and it is for the jury to consider and find upon that evidence what was the meaning of those 'words, viz., "No.1 Shott's Scotch pig-iron," as understood by persons engaged in the iron trade in S1. Louis. If the jury shall believe from the evidence before them that, according to the 'usages of persons dealing in and using pig-iron in S1. 'Louis, the words "No. 1 Shott's Scotch pig-iron" were understood by such persons to mean pig-iron made in' Scotland, Shott's furnace, and of such grade as should correspond to the grade of Scotch pig-iron commonly described or recognized in this market as No.1, then the jury cannot find that the plaintiffs fulfilled their part of the contract sued on, unless the jury shalt be satisfied, from the whole evidence before them, that the 500 tons of iron which was offered by the plaintiffs to the defendant on or about the twenty-sixth of May, 1880, was iron made at Shott's furnace in Scotland, and did correspond, as to the grade thereof, with the grade of pig-iron usually'known in this market as' No.1 when applied to Scotch pig-iron. If the jury shall find from the evidence, according to the usage of
this market, the description of No. 1 Shott's Scotch pig-iron was understood by persons dealing in and using pig-iron as a description of iron such as is last mentioned, and that plaintiffs have failed to prove to the satisfaction of the jury that said 500 tons so offered to the defendant by them did, in fact, correspond with that description, then the jury should find for the defendant in this case. That is, gentlemen, only to repeat in substance what I have said to you, that you are to determine from the evidence in this case what quality of iron was called for by that description as understood by iron merchants in St. Louis, where the contract was made, and then you are to inquire and determine whether that quality of iron was tendered to the defendant. If you· should find for the plaintiffs, gentlemen, your verdict will be for the difference between the contract price of the iron and the price for which it was sold, less the costs of the sale, and interest at 6 per cent. from the date of the tender, as shown by the evidence. If you find for the defendant the form of vour verdict will be, "We, the jury, find for defendant."
CITY 01'" ELIZABE:TH.
(Oircuit Oourt, D. New Jersey.
July 26, 1881.)
The statnte of a \State provided, among other things, that when upon the recovery of a judgment against a municipal corporation and the levy of an execution thereunder sufficient property is not found to satisfy the same, a copy of such process shall be served on the collector and assessor, who shall then make an asseilsment and levy the required amount. Held that a writ of mandamus, commanding the city council to provide for the payment of the judgment, will not be granted in the absence of proof that the requirements of the statute have been complied with.
NiXON, D. J. The above-named plaintiff, having recovered two judgments against the city of Elizabeth,-one, on the first of April last, for $4,334.86, and the other, on the seventh of April. for $2,079.23, besides costs of suit,-duly issued executions on the said judgments and placed them in the hands of the marshal, who has returned the same, with the indorsement that there is no property of the defendant corporation within the state whereon to levy, sufficient to satisfy the said executions. He now applies to the court for the writ of alternative mandamus, commanding the city council of the