ROBINSON tl. BROOKS.
525
the United States'supreme court. The course which I have adopted will enable the court of equity to fully hear and determine the rights of the contesting claimants, and to afford the garnishee the relief to which he may be entitled under his bill of interpleader
ROBINSON
et al.
'11. BROOKS
(Circuit Oourt;W D. Mi880W1i, O. D. November 19,1889.) S.ALlIl-DELIVERy-REASONABLE TIME.
Plaintiffs received fr,om defendants an order to ship theIQ, a to be used in threshing, "at once, or as soon as possible, " for whicli defenda"nts were to pay upon its arrival, and were notified that the' threshing season The machine at that time was at a point but 28 miles from its destination, a letter from plRintiffs to the railroad agent at that point should have reached hUn in two days, and there was a daily freight train' between the two, points. One week,'after they received the order, plaintiffs were notified that the had not reached defendants, and that the season was nearly-over. The order from plaintiffs to the railroad agent at the placewbere the machine was, to ship it to defendants, reached himt.he next day, but defendants did notreoeive the machine until four days ",fter 'that. that plaintiffs failed to comply with their bonti:actin regard to the time of shipment, their delay being unreasonable.
At Law.
Co8grove &- John8on, for plaintiff. Draffin &- Williams, for defendants. PHILIPS, J. This is, an action to recover the purchase price, of a threshing-machine. The facts are substantially as follows: The plaintiffs are manufacturers at Richmond, Ind., under the firm name of RObinson & Co., of traction-engines with designated equipments for threshing out grain. ' In June, 1886, the defendant John Mackler was the local agent of plaintiffs in and about Cooper county, Mo., for the sale of said machines. In the forepart of that month he obtained from one D. P. Weathers an order on plaintiffs for the machine in.. controversy. The Ind., machine waS shipped abou,t the 21st of that month ,from to said Weathers, but the plaintiffs Were named as consigneeS. On the 28th day of June, Mackler wrote plaintiffs from Pilot Grove, Cooper them that Weathers bad failed to comply with county, Mo., his contract and take the machine, and proposed to store it for plaintiffs if tbey would aqvance the freight charges thereon. which tbe'vendee by his contract was to pay. It does not appear fromtbe evidencewIlether the machine Wll-S then at Sedalia; for Mackler bimself, as appears from his letter, did not know wbere it was. Mackler also suggested in this letter of the 28th of.June tbat be thought within ten days he could find another buyer for the machine. On receipt of this letter, plaintiffs notified Mackler that they expected Weathers to comply with 'his oontract, and take the machine. On the 30th day of June, Mackler wrote plainhe pad bappily solved the difficulty by finding anetherpurcbaSer tiffs
526
FEDE'ltAL 'REPORrER,vol.
40.
ana: inolo.d, anordet-theref{J),r." 'was 'signed Brooks"M;, J. Judd, :aod John Mackler. Mackler; stated,thnthe:bad; taken one-third interest,aild,the other deMackler on '@ne of fendants two-thirds. '.Ehis:,order was drawn the printed blank forms furnished him as such agent by plaintiffs. It ran as f0110ws: "We hereby order from you the following, [then follows a minute description of a etc. ,] to be second-hand, in good order, and to fill the bill, same as new as to working quality; * * *,to,qe delivered on boarq.cars at your factory, for shipment by the' route you thihk best and cheapest, at once, or soon as possible"O;Q- <m 1886,to,pein,care of J.<;>hn Mackler, at Pilot Grove, or as soon thereafter as possible,"-for which defendants were to pay, on arrival, $1,235, and the freight. The letterofMacklerac,this order atated that the xn.ncb.ine ordered,was the one shipped to Weathers at Sedalia; and the letter contained this concluding ,cllliuse:lclfW[the is laid oft' on the roa4, hunt it up at oncejRswe are ready to thresh now." This letter reached plaintiffs on th,e .2,d July;' whereat they .order with the railroad agent at Richmond, through whom they shipped the machine, to have itforat,oQceto,¥ackler,at.Pilot Grove, Mo. On the ,same day they telegraphed Mackler what they had done, and also wrote him that they had telegraphed to Sedalia to have machine forwarded, and expressing the hope thatit would reach him in good condition. "If not, notify us, and it will be made so." .Plaintiffs supposed that the machine had been forwarded as telegraphed until the 9th day of JUly, when'they received letter from Mackler, dated July 7th, informing them that the machine had, no1ireachedPilot Gtove on the 6th, lnst., and thatithe other parties, Brooks and Judd, would refuse to take it because it was too latEi,an'd asking what he should do, etc..,On receipt of thisletter,plaintiffs immediately telegraphed Mackler that defendants must comply with the contract, and take the machine. . ; They telegraphed totheagent I1t aaIiaand St. Louis of the, railroad having the machine in charge to have it forwarded'at once to Pilot <Grove. The' machine did not reach Pilot 'Grove, distant from: miles; until the 14th of the month. DefElndants,declinedtoreceive.,the'lllabhine, and it was afterwards sold by the railroadcmnpariy for thefreight.'rhis action is to recover the purchase money,Lir' the contractp!,'ice.The defenda:nts make two defenses: ' F'i:rst, the d'elayirishipp'ing' the'machinewas unreasonable; and, 8econd, that tbemachine, as itreaohedPilotGroV'e, 'was incomplete, iIi that of, tbeenginewas missing, without machine 'couM: not be ope1'l1ted. ' . c: ,1. Theimportaht mllltteti pr.esel'ltedon the foregoifig'facts is, wl1s:the de1Ry iiIHorwardingthemachine from Sedalia to Pilot Grove such as to discharge de1endants from the obligation to acceptit'when'it did arrive? This tumsupollithe construction or effect to be given futhe terms of the contract,"litonee,',Oras words, in the administrationof jnstieai ,callnot ·have an arbitrary· uefinition. They mq8t'pGsseSlt'SO:much,flexibility 'as to ;be reild' a.ncl';appliEid in the
BOB):KSON V. 'BROOKS;
527
ligM of the' surpotmding circumstances. In Palmer v. Insurance Cb. 1 44 Wis. 208, the court, in speaking' ofthe,term, "as soon as possible,"llsemployed in a policy of insurance, say it: "must mean that the particular account of the loss should be made ae soon as it'could be,under the cir-. cumstllnces, or within a reasonable time, or as soon as practicable." 2 Benj. Sales,§§ 1027,1028, refers to Attwaodv. EITMty,l C. B. (N. S.)110, where theagl'eement of the vendor, a manufacturer\to deliver as soon as poasible, was construed to mean, "as soon as the vendoriS could, with refer'erence to' their ability to furnish article ordered,consistent with the of prior orders in hand." Reference then is made to thelliter case of Engineering Co. v. McHaffie, L.R.4 Q. B·. Div. 670, as expreiSaiveofthe betterrule, where it is held that these words "mean within a rt".asoI)able time, 'with a.rt undertaking to do it in the shortest practicable * * .By the words as soon as possiblei"said COTTON, L.J., l'the defendant must be taken to have meant that they would make tb,e ,quickly as it could bernade in the largest establishment,with 'the best appliances." The delay, in that case arose, from the act 'of an inoompetent workman, and the vendor was held for breach: of contract. When 'the order in'question was forwarded toplaintitfs, on the 30th day ofJqn!:1, the machine, presumably, was already on car at the stati6n at Sedalia,Mo., within 28 miles of Pilot ,Grove. ' Plaintiffs were advised of theimportanceto the .purchasers ofthe'greatestexpedition in forwardjng They must have known, as manufacturers engaged in,the busi· ,Dess of ,selling such machines for the ,harvest in Missouri, that the !season .for t1;lr,eshing begins here about the last days of June, or the firsf,of,JulYi in addition'towhich, the letter of June 30th, accompanying the order for themaohine, urged immediate attention, as the threshing. was ready. Knowing, as plaintiffs did, that such machines were bought for use in the beginning and, flush of. the threshing season, this fact indicated to them . that time was Qf the very essence of the contract, and that the terms II at onpe, or ll.Ssoon as possible,".meant at the earliest moment oftimepracticable to meet the purchasers' objEl:Ctin making thebrder. Plaintiffsreceive<l,tbJs ()rdel" on the 2d day of July. A letter from them to the railroad agent at Sedalia would, in the ordinary course of mail, have reached. him on the. 4th of J1.l1y. There was a daily freight train between Sedalia and Pilot Grove. rThe machine could have left Sedalia on the 5th of July, orbytbe 6th, on a liberaL allowance, and reached Pilot Grove ina few bours.·, .' It is to be conceded to the plaintiffs. that. on the receipt of,the order they, recognized theiinportance of. activity,! for they Jeftan order with the shipping agent at Richmond, Ind., over whose line they made ,the original,shipment, to order by telegraph the car to be forwarded from Sedalia And they claim, that they also notified one of the defendants of:this :fact by telegram. But it does not appear that either of these 'telegrams were r.eceived. This being an aotion to recover the contract price, it devolv:es on plaintiffs to show that they performed their plaintiflB: discharge their whole duty,under the contract, part.;; by giving a order to the local railroad in their place of business,and not i
528
FEDERAL REPORTER,
vol. 40.
inquiry for seven days, to ascertain whether, or not the order bad been executed? They did not perform their undertaking to ship this car by merely lea"ing directions with an agent in Indiana to attend to it. The · neglect of the railroad agent was their neglect, so far as these defendants are concerned. The plaintiffs might have their remedy against the railroad company, but their contract required that they should deliver the machine:on board the cars, or, as applied to the facts of this case, that they should reship from Sedalia to Pilot Grove, to Mackler, as consignee. Thiflulldertakingon their part they pad not executed on the 9th day of July, when they learned through Mackler that the ma<:>hine had not reached'Pilot Grove on the 7th. They then bestirred themselves by telegram,and not until the 10th of July did the reshipping order reach the agentat,Sedaliaj and the car did not reilch Pilot Grove until the 14th day of July. No reason is assigned, nora word of evidence offered, by plaintiffs to account for the delay of four days more after the Shipping order reached Sedalia before,the car was sent to Pilot Grove. It is true that under the contract the machine wow.d,technically, be regarded as deliveredto'defendants when shipped from Sedalia. But'plaintiffs fail to show the da.te Qfshipment; and, as the car did not reach Pilot Grove until the 14th of July,<8. distance of only 28 miles, and the evidence shows tbat there is a freight, train each morning from Sedalia to Pilot Grove, the presumption is that the car was 110t reshipped from Sedalia until thel1:D.orning of the 14th. Here, then, was a period of over 2 weeks after the order was given,and 12 days after plaintiffs received it, before it wasexecutedj when, as already, demonstrated, 5 or 6 days afforded everyrellsonable fscility and time for its execution. As shown by the evidence, and as Il1ust have been known to plaintiffs;--for as much was indicated to them by defendant Mackler's letter of the 7th July ,-when thiS machine left Sedalia the season for threshing grain was two-thirds over" 'and the main inducement to the purchase was passed. This was not, in the language of the authoritieR, "within a reasonable time, with an undertaking to do it in the shortest practicable time." The great mistake which has led to this litigation was the thoughtless security with which plaintiffs sat down after leaving an order with the local railroad agent at Richmond,· on July 2d. They trusted him to do .that which they should have seen was done. His 'neglect, his delay, cannot be attributed to these defendants, nor exonerate the plaintiffs. Plaintiffs, in fact, seem to have acted with little business sense, conservatism, or prudence, throughout. After being advised, as they were,by Maokler that the machine. would not be accepted if shipped after that date, they had two courses open to them,--to have stopped there, and sued defendants for damages consequent upon their refusal to accept, or, -after shipping: to Pilot Grove, and finding no one to receh'e the machine, they should. hnvehoused it, and sold it for the best price attainable, and sued for the difference in damages. They would neither advise the defendantS to house it, without prejudice, nor reship to Sedalia; but abandoned the maohirie to its fate,td be sacrificed by the railroad for freightage.:'The ,exercise of a little common sense, and a spirit of compromise,
FARWELL fl. SEEBERGER.
to a reasonable extent, often pay better in the end than a swift and ready resort to litigation. In the view thus taken of this case, it is unnecessary to discuss the other fact in evidence, and relied on by defendants, that ;the machine, when it did reach Pilot Grove, was without a smoke-stack, without whioh it could not be operated. The first defense1s conclusive rimough. It follows that the issues are found for the defendants. J udgment accordingly.
FARWELL fl. SEEBERGER,
Collector.
(Circuit Court, N. D. nlinoiB. JUly 18, lSS9.) CUsToMS DtiTtllB-'"'-CLASSIFIOATION-WOOLEN DRESS-GOODS.
Women's and children's. dress-goops, which contain no cotton, except about 6 per cent., carded into the wool from which the warp is spun, come within the description Of. goods composed in part of wool, an.d are dutiable at 5 cents per square yard, a11d 85 per cent. ad valorem, under March 5, 1888, (Heyl's Aytangement, .c1. 865, pars. Ilt b,) though the cotton was used for the purpose of securing a lower classification.
At Law. Action by John V. Farwell against Anthony F. Seeberger, collector of customs, to recover excessive duty alleged to have been levied on certain goods. Shuman &: Defrees, for plaintiff. W. G. 'Ewing, U. S. Atty., and G. H. Harria, Asst. U. S. Atty., for defendant. BLODGETT, J. Plaintiff imported a quantity of women's and children's dress-goods, composed mainly of wool, and weighing less than 4 ounces to the square yard, upon which the collector imposed a duty qf 9 cents per square yard, and 40 per centum ad valorem, under paragraph e, clause 365, Heyl's Arrangement of the aot of March, 3, 1883. The plaintiff, insisting that said goods were composed in part of wool and part cotton, and dutiable, under paragraphs a and b of said clause 365, at 5 cents per square yard, and 35 per centum ad valorem, paid said duties under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and brought this suit in apt time to recover the excess of duties so paid. The proof shows that the goods in question are women's and children's dress-goods; that they are composed mainly of wool; that there is about 6 per cent. of cotton carded into the wool from which the warp of said goods is spun; and that there is no .10tton in the filling of the goods. The proof also shows that this mixture of cotton in the warp of the goods was made purposely to secure the classification of the goods as composed in part only of wool. There is proof in the case also tending to show that the mixture of the cotton with the wool in the warp adds to the strength and firmness of the goods, and makes them less liable to shrink; but my conclusion is that one of the v.40F.no.9-34