Camden Consolidated Oil Co. v. Schlens

Contract to deliver goods—Breach of Contract—Measure of damages—Pleading—Legal right of Plaintiff to recover— Breach caused by Accident or design. In actions by vendee against vendor for breach of contract to deliver goods, the general rule is, that the measure of damages is the difference between the contract price and the market price at the time and place of delivery; but where an article is purchased, not for the domestic market, but to be shipped abroad, and the fact was shown on the face of the written contract and was known to the vendor, and it was impossible for the vendee to discover the inferiority of the article (which had been fraudulently substituted by the employes of the vendor) until it had reached its ultimate destination, the true measure of damages is the difference between the market price of the article contracted for, at the date of its arrival, and the price afterwards realized upon a sale thereof, together with the necessary and proper costs and expenses incurred in making the 3ale. Where in an action by vendee against vendor for breach of contract to deliver goods, the damages claimed by the plaintiff are not in their nature special, but such as are the natural and proximate result of the breach, it is not necessary that they,should be particularly stated in the declaration. In an action by vendee against vendor for breach of contract to deliver goods—the breach being a failure to deliver the kind and quality of article contracted for—it is immaterial as to the legal right of the plaintiff to recover, whether the breach was caused by accident or design. It is not the less a breach, because the failure to deliver the article purchased, proceeded from the fraudulent acts of the defendant’s agents.

Appeal from the Superior Court of Baltimore City. This suit was brought by the appellees against the appellant. The declaration contains the common counts in assumpsit and one special count, (the Ith,) which sets out a contract on the part of the appellant to sell and deliver to the appellees “twenty thousand barrels of refined petroleum, color to be standard white, or better, and which would burn at a test of one hundred and ten degrees Fahrenheit or upwards,” and alleges as a breach that the defendant “failed and neglected to deliver the same.” The defendant pleaded. 1st. “That it never was indebted as alleged.” 2nd. “ That it never promised as alleged.” 3rd. “ That it did perform all things required to be performed under the contract between it and the said plaintiffs,” and issue was joined. The evidence showed that the sale was made by written contracts; by which it appeared that there were three several contracts similar in their terms; one for a certain number of barrels more or less, enough to fill ship Maryland, one for enough to fill'ship Agra and one for enough to fill ship Wm. Woodbury. In each it was stipulated that the petroleum was to be “color standard tohite, or better. Burning test 110 degrees Fahrenheit or upwards. Cash to be paid on delivery in yard, suitable to vessel in Baltimore.” The contracts were each subject to the “Rules of the New York Produce Exchange.” Of these the 25 th Buie was given in evidence, which provides: “Buyers shall have the right of naming their inspector, but shall do so at least five days before the maturity of the contract; failing in which, the sellers may employ, at buyers’ expense, any regular petroleum inspector, approved by the committee on petroleum, and his certificate that oil is in conformity with the contract shall be accepted. On a contract for prompt delivery, or where no notice is required, buyers shall name their inspector when contract is executed; otherwise, sellers may appoint inspector, at buyers’ expense.” Under these contracts refined petroleum was received ut the warehouse and yard of the appellant, was there inspected hy the inspector selected hy the appellees, and hy them certified to he in conformity with the contracts; the ships named were a short time thereafter loaded with petroleum at the yards or wharves of the appellant; and from the time the same was inspected until it was delivered at the ship’s side, to he put on hoard, it remained in the custody and possession of the appellant. “ The ■Maryland” began to load on the 6th of February lSYT, finished on the 9th and cleared on the 10th. The “Agra” began to load on the 22nd February, finished on the 1st of March and cleared March 6th. The “ Woodbury ” began to load on the 9th of April, finished on the 19th and cleared on the 23rd. All bound for,Bremen. The “Agra” was the first to arrive, she reached Bremerhaven on the 23rd of April ISÍL Her cargo had been sold by the appellees’ agents “to arrive.” Soon after her arrival, as correctly stated in the appellees’ brief, “the appellees were notified hy telegram, that the portion of her cargo which was marked with the brand ‘Franklin’ had been rejected by the purchaser, because its fire-test was below what the contract of sale called for, being about 60 degrees instead of 110 degrees. The same brand in the cargo of the ‘Maryland’ was also unsaleable because it fell below 110 degrees fire-test; and by the time the ‘Woodbury’ arrived, although what there was of the brand ‘Franklin’ in her cargo, stood the fire-test of 110 degrees, yet the inferiority of that brand in the two previous cargoes had given it a bad name, so that it could not he sold, and it was accordingly stored at the risk and expense of the appellees; who however abandoned, at the trial below, all claim on account -of the ‘Woodbury’s’ cargo. All the other brands, except the ‘Franklin,’ which went to complete the cargoes, were in conformity with the contracts. When the appellees received the telegrams advising them of the rejection of the oil on account of its inferior fire-test, they at once-notified the appellant that they would hold it responsible for the loss. The only reply to this notification was ‘ that-the sale was made subject to the rules of the New York. Produce Exchange.’ “ By the time the cAgra ’ arrived, her cargo had been sold three or four times, and in order to prevent its rejection by the last buyer, and the consequent loss of the original sale, ‘to arrive,’ the appellees instructed their agents in Bremen to repurchase it from the last purchaser, at the then market price of good oil, and after-wards sold it for the highest price it would bring. In .the case of the ‘Maryland,’ the inferior oil was rejected by the first purchaser, and was then sold by the appellees’ agents, for the most it would bring. “Upon receipt of the telegrams announcing the rejection of the oil, as being below the fire-test required, the appellees sent the inspector, who had inspected the oil in Baltimore, and had certified that it was up to the required fire-test, to Bremen, to test it there, and the test there did not correspond with what he had certified to, being an average of a little over 98 degrees, instead of 110 degrees.” The cargo of the “Agra” was repurchased by the appellees’ agents on the 2nd and 11th of May, and resold on the 18th of July; the “Franldin” oil in the cargo of the-“Maryland” was sold July 18th. The appellees claim to recover in this suit what they lost by reason of the failure of the appellant to deliver oil corresponding with the terms of the contracts, that is. “the difference between the market price of oil of 110 degrees fire-test, at the date of its arrival, and what was. realized from the inferior oil when sold.” First Exception.-—-This exception was taken to the admission of the evidence of the witness Misspach in reference-to the alleged alteration of letters on the barrels of oil. Second Exception.■—The plaintiffs offered the two following prayers: 1. If the jury believe from the evidence, that a quantity of oil of the “Er ankl in” brand was furnished by the defendant to the plaintiffs for inspection, as part of the cargoes of the ships “Agra” and “Maryland,” respectively, to be shipped in said ships to some foreign port, under and in fulfilment on defendant's part of the contracts given in evidence, and that said oil was thereupon inspected by inspectors selected by the plaintiffs, and was certified by them to be of a fire-test of 110 degrees, and was accepted and paid for by plaintiffs upon and according to such certificate ; and if the jury shall further find, that said oil, after such inspection and acceptance, was left in the custody of the defendant and that it was its duty to keep the same, and deliver it at the ship's side, on the wharf, for shipment, and that the same was not so delivered by defendant, but that certain other and inferior oil of the same brand, and below the fire-test of 110 degrees, was substituted and delivered by defendant, in its stead, to said ships, and was shipped accordingly, without any knowledge on the part of the plaintiffs of such substitution, then the plaintiffs are entitled to recover. • 2. If the jury shall, find the facts set forth in the plaintiffs' first prayer, and shall further find that the inferior substituted oil shipped on the “Agra” and “Maryland,” or either of them, was found on arrival at Bremen, to be below 110 degrees fire-test, and was for that reason unsaleable at the market price of oil of 110 degrees fire-test, and had no market price or saleable value in the market at that time, and that the plaintiffs, before such arrival, had sold the same or any part thereof, to arrive, as oil of 110° fire-test, and were compelled on arrival, to take the same or any part thereof to their own account at the then market price of oil of 110 degrees, or to retain the same or any part thereof until it could be sold, and that the plaintiffs afterwards sold the oil so taken or retained as speedily as it could he sold for the best attainable prices, and realized less therefrom than the market price on the arrival of said ships respectively of oil of 110 degrees fire-test, then the plaintiffs are entitled to recover the difference between' the market price of oil of 110 degrees, on the respective days of arrival, and the price which they afterwards actually realized, together with all necessary and proper charges and expenses which the jury find that they were compelled to incur in so dealing with the oil, and the jury may, in their discretion, give interest upon the whole amount to which they may find that the plaintiffs are so entitled. And the defendant offered the following six prayers: 1. That the plaintiffs are not entitled to recover upon the issues joined in this case on account of the oil supplied by the defendant for the cargo of the ship “Woodbury.” 2. That if the jury find from the evidence that oil was supplied by the defendant to load the ships “Agra” and “ Maryland,” under the contracts offered in evidence, and that some of said oil was under the fire-test of 110° Fahrenheit, and that said oil was accepted by the inspector employed by the plaintiffs, after having had the opportunity to inspect the same as fully as he might have desired so to do, and that the said inferior oil was accepted through the neglect or carelessness of the inspector, and that the same was shipped on said vessels without fraud or deception on the part of the defendant or its officers or agents, their verdict must he for the defendant. 3. If the jury find from the evidence, that the defendant supplied oil to load the “ Agra ” under the contract offered in evidence, and that some of said oil was below the fire-test mentioned in said contract through the fraud of the agents of the defendant, and not for the reasons set forth in the defendant’s second prayer, and if they further find, that the “ Agra ” arrived at Bremerhaven on the 23rd day of April, 1877, and that the plaintiffs had sold her cargo, including the inferior oil, before its arrival, at a price above the market price at the date of its arrival, and that the purchasers of said defective oil had resold the same to others according to the certificate of fire-test furnished the plaintiffs, and that the last purchasers rejected said'oil as being below said test, and that the plaintiffs upon being apprised of such rejection, repurchased a part of said inferior oil from the persons who had rejected it as aforesaid, on' the 2nd of May, and another part thereof on the 11th of May, as testified to by the plaintiff, E. Schlens, and that the plaintiffs resold said oil, so repurchased by them, on the 18th of July, then the plaintiffs are not entitled to recover on the issues joined in this case, the difference between the amount paid by the plaintiffs to repurchase said oil, and the price at which they resold the same. 4. If the jury find from the evidence, that the defendant supplied oil to load the ship “ Maryland,” under the contract offered in evidence, and that part of the oil so supplied, was below the fire-test named in said contract, through the fraud of the agents of the defendant, and not for the reasons set forth in the defendant’s second prayer ; and if they further find, that the cargo of the “Maryland” was sent by the plaintiffs to Bremerhaven, to be sold in the Bremen market, and that by an accident, her arrival at Bremerhaven was delayed, and that she arrived there on the 2nd of May, 1877, and that the same was sold on the 18th of July, then the plaintiffs are not entitled to recover, on the issues joined in this case, the difference between the price of said oil in Bremen at the time the “Maryland” reached Bremerhaven, and the price at the time said oil was sold, nor are they entitled to recover the difference between the market price of said oil .in Bremen on the day it was sold, and the market price it would have brought on that day in Bremen, if it had been of the fire-test required by said contract. 5. If the jury find, that the defendant supplied oil below the fire-test required by the contracts offered in evidence, and that such inferior oil was put on hoard the “Agra” and “Maryland,” through the fraud of the agents of the defendant, and not as set forth in the defendant’s second prayer, then the measure of damages upon the issues joined in this case .is the difference between the market price of said inferior oil in Baltimore at the time the same was supplied, hut not less than the contract price and the market price said oil would have brought in Baltimore at that time, had the same been of the quality required by said contracts, and there is no evidence in the case from which the jury can fipd what the market price in Baltimore of said inferior oil was at the time the same was supplied, and in the absence of such evidence, the plaintiffs, if the jury find for them under this prayer, are only entitled to nominal damages. 6. That even if the jury find the facts stated in the two prayers of the plaintiffs, the plaintiffs are not entitled to recover upon the issues joined in this case. The plaintiffs specially excepted to the third and fourth prayers of the defendant, because they and each of them assumed that there was evidence in the case tending to show that the “Franklin” oil, which arrived at Bremerhaven in the ships “Agra” and “Maryland,” or either of them, had a market price on arrival, which market price continued to decline until the times when said “Franklin” oil was finally sold. Whereas, there was not' only no evidence tending to prove said facts or either of them, hut the entire evidence in the cause, upon the said points, was directly to the contrary of the facts assumed. The defendant excepted specially to the prayers of the plaintiffs, because said prayers assumed that there was evidence of a substitution of rejected or inferior oil for accepted oil in the case of the cargo of the ship “Maryland,” of which fact no evidence had been offered. The Court (Gilmor, J.) granted the plaintiffs’ prayers, •as also the first and second prayers of the defendant, but rejected its other prayers. The defendant excepted, and the verdict and judgment being for the plaintiffs, this appeal was taken.