GILL MANUF'G 00. V. HURD.
673
mits it to do so, and therefore it ought not to be heard to object if the plaintiff does the same. And if the defendant was ignol'ant of the conduct of the Northern Pacific, because it was willfully blind to it, or did not care to know the fact, the same consequence would follow. The defendant has ascertained that the plaintiff is delivering freight below the stipulated rates, and doubtless might as easily and readily have found that in so doing.it was merely following of necessity the example of the Northern Pacific. Indeed, the attention of the manager of the defendant was directly called to the fact that this company was cutting rates, by the superintendent of the plaintiff, before this proceeding was commenced. But nothing was done about it, and the defendant seems to have acted upon the theory that it could evade the injunction by permitting a company, which is either in fact itself or its close ally in interest, to carry for one half the rates the plaintiff is required to charge, and thereby destroy the latter's business and drive it off the road. But the law is not so vain a thing as this, and it will look below the surface of such a subterfuge and protect the plaintiff in the right to compete for business over the road within the limits which the defendant allows or permits to the Northern Pacific. The defendant is not entitled on the case made to any modification of the injunction or interference of the court. This conclusion is fully sustained by the rulings in the following cases: Dinsmore v. Louisville, etc., By. Co. and Southern Exp. Co. v. Nashville, etc., By. Co. 2 REP. 465; Southern Exp. Co. v. Louisville, etc., Co. 4 FED. REP. 481; Texas Exp. Go. v. Texas, elc., By. Go. and Same v. International, etc., Ry. Go. 6 FED. REP. 427; Southern Exp. Go. v. Memphis, etc., B. Go. 8 FED. REP. 79\). The motion is disallowed, at the costs of the defendant.
GILL MANUF'G
Co.
V. HURD.
(Oircuit Oourt, N. D. Ohio, W· .D. June Term, 1883.) 1. CONTRACT-WHAT NECESSARY TO CONSTITUTE-RULES GOVERNING IN CERTAIN OASES. . .
In Qt'der to constitute a contract, the minds of the parties must meet, and all the terms of the same be agreed to. If any part of a contract is not settled by the pllrties, or a mode agreed upon to settle it, as to that part there can be no contract.
2.
SAME-CERTAIN RULES,
In detennining what a contract is, the rule is to consider the negotiations passing between the parties. Their conversation in relation to it before completed. if the same is understood by the parties, shall be incorporated in the contract, even though such negotiations are not repeated at the time of its completion, anti such previous understanding will a part of it, un· less changed or exc!tloed at the time it may be so completed.
v.18,no.12-48
.
674 3.
FEDERAL REPORTER. OF A CONTRAOT- WHERE NO. TIJIfE) IS FIXED.
. Where no time is fixed for the performance of a contract, the law fixes a reasonable time in which it is to be performed; and so, where no agreement is made as to the manner of construction of an article contracted to be made the law requires it to be made in a workmanlike manner, with good materials' and merchantable, and suitable for the purposes for which it was made. ' SAME'-l{ESCISSION OF CONTItAC'r.
4.
A postal card from one party to a contract to the other, asking that nothing be done about building certain cars contracted to be built until further instructions, and setting the time within which such further instructions would be given. held, not to constitute a rescission of the contract, the same only amounting to a request to suspend the construction for the time named; and upon the failure of the first party, within the time named, to give further notice in a positive form not to construct, the second party had a right to go on with the work.
I
At Law. W. I. Gilmore and Swayne, Swayne d Hayes, for plaintiff. Scribner, Hard d Sc,'ibner, for defendant. WELKER, J., (charging jury.) The plaintiff, an Ohio corporation, sues the defendant, a citizen of the state of Connecticut, and in its petition alleges that on the thirty.first day of March, 1880, it made a contract with the defendant to manufacture for the defendant, and deliver to him at its shops, in the city of Columbus, within a reasonable time thereafter, 100 merchantable box cars, to be painted white, and lettered as defendant might direct; that in consideration thereof the, defendant agreed to pay the .plaintiff the Bum of $580 for each car, to be paid for on delivery, or ,a reasonable time thereafter; that the plaintiff purchased the materials for the cars, and immediately proceeded to construct the same, and within a reasonable time thereaftar,.to-wit, on the tenth of September, 1880,.completed the same, lettering thereof, and was ready and willing to letter the except same as directed by the defendant, and ready to deliver the same at its shops according to the contract on said tenth of September, 1880, of all which the defendant had due notice; that the defendant neglected and failed to inspect the cars or direct their lettering at tho time of their completion, and neglected to accept and pay for the same, al· though duly notified of the completion of the 'cars; that thereupon the plaintiff sold the cars at the sum of $500 net, which' was the highest price that could be obtained in the market. Plaintiff also that it has been delayed in receiving its money, and put to great trouble and expense in repainting the cars, changing from white to merchantable color. It claims to have been damaged in the sum of $12,000, for which it asks judgment. The defendant in his answer denies entering into any contract with the plaintiff for the manufacture of any box cars for him, and denies that the plaintiff manufactured any box cars for him. He admits there were some negotiations between them looking towards a possible CO:1tract for building box cars for him by the plaintiff, if they could agree upon terms and conditions upon which they should be built, but did not ripen into an agreement; that in the negotiations defendant
CULL MANUF'a co.
v.
HtrRD.
675
informed the plaintiff that if a contract was made he should require from the plaintiff a warranty from responsible parties that the wheels and springs of the proposed cars should continue serviceable for the period of five years; that no such warranty was ever given or tendered, nor were any specifications drawn or submitted to defendant therefor; that within a few days after said negotiations, and before any work was done by the plaintiff upon the cars alleged to have been manufactured, the defendant gave plaintiff written notice not to build any cars for him. The plaintiff replies, denying that in the negotiations the defendant required a warranty for the wheels and springs as alleged, and denies that any specifications were to be drawn or submitted to the defend· ant. It also denies that at any time before work was commenced the defendant gave it written notice not to build any cars for him. These pleadings form the issue you are to detel'mine. The first and leading question of fact for you to determine from the evidence is, was there !Ii contract made between the parties, as alleged in the petition? The plaintiff has the burden upon it to establish, by a fair preponderance of evidence, the mltking of the contract as it alleges. In order to constitute a contract, the minds of the parties must meet,they must agree to the terms,-and both parties must understand, or should have understood from what passed between them, the terms of the agreement. If any part of the contract was not settled, or a mode agreed upon to settle it, as to that part there would be no contract. In determining what the contract was the rule is to consider the negotiations passing between the parties. Their conversation in relation to it before completed, if the same is understood by the parties, shall be incorporated in the contract, even though such negotiations are not repeated at the time of its completion; and such previous understanding will constitute a part of it, unless changed or executed at the time it may be so completed. It will be your duty to carefully consider all the evidence bearing upon the making of the alleged contract,-what was said between the parties, the telegrams and letters passing between them, the subsequent conduct of the parties, their relation to the subject-matter of the contract, and from this evidence determine whether a contract was made between these parties for the construction of the box cars as claimed by the plaintiff. This must be settled by you from the testimony you have heard in this case. Where no time is fixed for the performance of a contract, the law fixes a reasonable time in which it is to be performed. If no agreement was made as to the manner of the construction of the cars, the law requires them to be made in a workmanlike manner, with good materials, and merchantable, and suitable for the purpose for which they were to be used. If the cars were to be made like the one examined at Bridgeport, or like those running on the Erie Railway at that time, the plaintiff
676
BEPOBTE&
would be required to make them substantially in the same manner as such cars were constructed. If the contract between the parties was that the plaintiff was to warrant by responsible parties the springs and wheels used in the cars for five years, the defendant was not bound to take the cars after they were made without such a warranty, and before the plaintiff can recover, it must show that such warranty was furnished the defendant. If the contract was that specifications for the cars should be drawn by the plaintiff, and submitted to the defendant for his approval, before commencing the construction, describing the mode and manner of their construction, then the plaintiff had no right to go on to build them for the defendant without such specifications being furnished and accepted. Whether either of these items constituted a part of the contract you must determine from the whole of the evidence; the burden being upon the plaintiff to show the contract as it states it, and the burden being upon the defendant to show that these particulars constituted a part of the contract. As to the notice alleged by the defendant to have been given by him to the plaintiff not to manufacture the cars. If a valid contract was made between the parties for the building of the cars, the defendant had a right, at any time before the completion of the contract, to abandon the same on his part, by giving the plaintiff notice of such abandonment; being liable, however, for the breach of his contract, and for the damages the plaintiff might thereby sustain. The defendant must show that such notice was so given. To prove that- notice, the defendant gives in evidence a postal-card, dated April 5, 1880, which reads as follows: .. I find I have Bome cars turned out of a line that I must place, and I don't quite see my way clear for the new ones; so please do not do anything about building them until I advise you,-say within three days." This card was signed by the defendant, and directed to the presi. dent of the plaintiff, and by him received. I direct you that this writing does not in law constitute a rescission of the contract, and does not prevent the plaintiff from proceeding to constrnct the cars. It only amounts to a request to suspend the construction for three days, within which the defendant would advise plaintiff in relation to the construction; and, failing within the time to give such further notice in a positive form not to manufacture, the plaintiff had a right to go on with the work. If you .find from the evidence that the contract as alleged by the plaintiff was not made, or if made, and the plaintiff did not substantially comply with the terms thereof, then you need proceed no further with your investigation, and your verdict should be for the defendant. If you find that the contract was made as alleged by the plaintiff, and the cars were substantially completed according to the terms thereof, and the defendant neglected or refused to receive and pay for them, the plaintiff is entitled to recover, and you will deter-
EASTON
HODGES.
677
mine from the evidence the amount the plaintiff is entitled to recover. After the cars were completed, and the defendant notified of such completion and requested to inspect, and accept them and pa.y therefor, if the defendant refused to receive and pay for them, the plaintiff had a right to sell them for what could be reasonably obtained fOJ them, using all reasonable exertions to ohtain the highest price, anc if so sold by the plaintiff, the measure of its recovery will be the dif ference between the contract price and the sum realized therefrom deducting from the proceeds of sllch sale the reasona.ble costs 0: making the sale, with interest from the time the cars were completei to the receipt of the proceeds on the contract price, and interest 01 the difference from the receipt to the first day of this term. In this action the plaintiff is not entitled to recover for storage of the cars, or for the insurance thereof, because it does not Bue for Buch damages.' Verdict for the plaintiff. Damages $6,000. Motion for a. new trial overruled, and eXC61)tions taken by defendant. See Austin v. Seligman, ante, 519, and note, 523.
and another v.
HODGES
and another,
(Ci1/llit Oourt, E. D. Wisconsin.
December 1,1883.)
1.
PLEDGE-SPEOIAL PROPERTY-!:'OWER-WAREHOUSE RECEIPT.
A person to whom specified grain in an elevator is, by a warehoute receipt, pledged for the repayment of a loan of money, has such a special property in the grain as will support an action of trover for the converson thereof.
FRAUD-RESCISSION.
A pledgee, who by fraudulent misrepresentations has been induced to release his interest in the propert.v under pledge, is entitled, upon discovering the fraud, to reassert his claim to the propertv against anyone privy to the fraud. (JOXFUSION OF GOODS-GRAIN IN ELEVATOR.
3.
The owner of specified grain in an elevator, which the proprietor mingles with grain of better quality, retains his property in the same number of bushels of the improved article as he originally owned of the inferior grade
ELECTION-REQUISITE INFORMATION.
A pledgee who has been induced by fraud to release the property pledged and to receive bills of exchange instead, will not be held to have elected to affirm the transaction, and to have waived his right to reclaim the goods, because, before obtaining information that would enable him to trace the goods, he has brought suit upon the bills. There may be circumstances under which a pledge can be assigned without the debt secured by it. Such a case may arise when the Bllsignee takes only a nominal interest for the purposes of an action at law.
5.
PLEDGE-SEVERANCE BETWEEN DEBT AND SECURITY.
At Law.
,
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