Filley v. Pope

In a mercantile contract, a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract. Under a contract for the sale of “ 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; ” shipment from Glasgow is a material part of the contract; and the' buyer may refuse to accept such iron shipped as soon as possible from Leith, and arriving at New Orleans earlier than it would have arrived by the first ship that could have been obtained from Glasgow.

IN error to the circuit court of the united states for THE EASTERN DISTRICT OF MISSOURI. This action was brought by Thomas J. Pope and James E. Pope, citizens of New York, and partners under the name of Thomas J. Pope & Brother, against Oliver B. Filley, a citizen of Missouri. The petition alleged that on February 20, 1880, the defendant bargained for and bought of the plaintiffs and they sold to him 500 tons of number one Shott’s (Scotch) pig iron, at the price of $26 per ton, to be paid in cash by the defendant upon the delivery to him of the iron in bond at New Orleans; the iron to be shipped from Glasgow, Scotland, as soon as possible, and the delivery and sale to be subject to ocean risks; and the defendant agreed to accept the iron as aforesaid, and to pay the plaintiffs therefor the sum of $13,000; and that the particulars of the sale and agreements were set forth in a note and memorandum thereof, signed by the defendant, as follows: “ St. Louis, February 20, 1880. Thomas J. Pope & Bro., New York: Have sold for your account to Mr. O. B. Filley, 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. “Yery truly, “Willard & Combs.” Across the face of this was written: “Accepted, O. B. Filley.” The petition further alleged that afterwards, and as soon as possible, the-plaintiffs caused the iron to be shipped from Glasgow to New Orleans; that upon its arrival at New Orleans, on May 26, 1880, they .offered to deliver it to- the defendant in bond at that port, and requested him to receive and pay for it, but he refused to dp so, and the plaintiffs were forced to sell it at a loss. The defendant, in his answer, admitted the Contract and his refusal to accept the iron; denied the other allegations of the petition; and alleged, as the ground of. his refusal.,and as a defence to the action, that the plaintiffs failed to ship the iron from Glasgow as soon as possible after the date of the contract. The plaintiffs filed a replication, denying all new matter in the answer. The testimony of the witnesses called by the plaintiffs at the trial tended to prove the following facts: Immediately after making this contract, the plaintiffs by telegraph bought the iron of John Anderson of Glasgow, and requested him to ship it to New Orleans. The iron was then at the works of the Shott’s Iron Company in Scotland, equidistant and equally accessible by railway from the ports of Glasgow on the west coast, and of Leith on the east coast; and such iron was sometimes shipped from Glasgow, and sometimes from Leith. Anderson at once made diligent inquiry and efforts to secure transportation from Glasgciw, and from Leith, and from other Scotch ports, to New Orleans, but, owing to the great scarcity of ships at that time, could only secure one vessel, the barque Alpha, which was then discharging her cargo at Leith. This vessel he chartered on February 23, 1880, three days after the contract in question was made at St. Louis. No vessel or transportation could be obtained from Glasgow to New Orleans then, or for weeks afterwards. The iron was sent down from the works of the Shott’s Iron Company to Leith as fast as the barque could receive it. With all speed, she discharged her cargo, took in the iron, and sailed from Leith for New Orleans, where she arrived about May 26. The distance by sea was greater from Leith to New Orleans than from Glasgow to New Orleans. If the Alpha had come round to Glasgow and shipped the iron there, it would have taken from six to twenty-si? days, according to the winds, and she would have had to take in ballast at Leith and discharge it at Glasgow, involving considerable delay and expense. The court instructed the jury that the provision of the con- . 'tract that the iron was to be shipped from Glasgow was not a material provision of the contract, so far as this controversy was concerned; that the purpose of the contract was the sale by the plaintiffs to the defendant of a certain quantity 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 was not material- to the rights of the parties in this case, if th.e other provisions of the contract were complied with; and that if the jury found that it was impossible for the plaintiffs to obtain a vessel from Glasgow, and that it was practicable to obtain one 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 the plaintiffs were-justiñed in shipping the iron from Leith instead of from Glasgow. 3 McCrary, 190. The defendant excepted to the admission of evidence relating to the shipment from Leith, and to the 'instruction to the jury, and, after .verdict and judgment for the plaintiffs in the sum of $6,155, sued out this writ of error.