Armour & Co. v. Sherburne
This text of 300 F. 81 (Armour & Co. v. Sherburne) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
The court is of the opinion that, under the contract of April 16, 1920,1 the Sherburne Company could furnish white Java sugar, packed in bags of about two cwt., etc., shipped from Java in the month of July, 1920, without regard to whether it bought the sugar under the Czarnikow-Rionda Company contract of March 31, 1920, or as later modified, whether it itself caused the sugar to be shipped from Java; that there was evidence from which the jury could properly find that Armour & Co. exercised its option to take the [83]*83sugar at 20.36 cents per pound, duty paid; that, although the Karimoen, the steamer first declared against, did not sail from Java in July, inasmuch as the Sherburne Company made that declaration subject to possible errors and corrections, it was a conditional declaration and did not preclude it from thereafter declaring a steamer or steamers bearing white Java sugars which sailed from Java in July; that it fulfilled its obligations in this respect when, on October 1st, it declared conditionally, and on October 14th unconditionally, the steamer Siletz which sailed from Java in the month of July with a cargo of white Java sugar and that Armour & Co., on September 3, 1920, and ever thereafter, by insisting on a cancellation of the contract as to July 50 tons, did so without right and in violation of the contract; that the contract of April 16, as drawn and before the option was exercised by Armour & Co. to take the sugar duty paid, was a c. i. f. contract- — that is, called for the payment of sugar at 19 cents a pound upon presentation of ocean bills of lading, invoice, freight receipt, and insurance certificates (Harper v. Hochstim [C. C. A.] 278 Fed. 102, 20 A. L. R. 123; Thames & Mersey Ins. Co. v. United States, 237 U. S. 19, 26, 35 Sup. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087); that after the option was exercised to take the sugar, duty paid it became impossible for the Sherburne Company to present for payment ocean bills of lading and rendered a certificate of insurance covering the voyage of no consequence; that, in view of this situation, it became necessary for the parties to agree, in order to enable the Sherburne Company to carry out its contract, on a substitution of dock delivery orders or warehouse receipts which might be presented in the place of ocean bills of lading in demanding payment; that there was evidence from which the jury was warranted in finding, that as early as July 9, 1920, Armour & Co. agreed to a substitution of dock delivery orders or warehouse receipts and that it would make its letter of credit in favor of the Sherburne Company payable upon presentation of such orders or warehouse receipts, but that it failed to furnish such letter of credit; that the declaration and right of action in this suit is not grounded upon the anticipatory breach of September 3, 1920, while the contract remained executory, but upon performance on the part of the Sherburne Company and a refusal on the part of the defendant to accept performance ; that section 146 of the Personal Property Law of New York (Consol. Laws, c. 41) is, therefore, not applicable (Hutt v. Hausman, 118 Misc. Rep. 448, 193 N. Y. Supp. 452); that as the action is based upon performance and nonacceptance and the evidence shows that the Sherburne Company was able and ready to perform by a presentation of warehouse receipts or a delivery of the sugar itself, the jury were warranted in finding that the Sherburne Company had fully performed its part of the contract and that it was unnecessary for it actually to tender the warehouse receipts or the sugar, for to do so would be a useless thing in view of Armour & Co.’s absolute refusal of September 3, which it thereafter persisted in, to accept performance (Hutt v. Hausman, 118 Misc. Rep. 448, 193 N. Y. Supp. 452; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y. 120, 116 N. E. 1073; Strasbourger v. Leerburger, 233 N. Y. 55, 135 N. E. 920; Landes v. Klopstock, 252 Fed. 89, 164 C. C. A. 201).
[84]*84The plaintiffs do not rely upon the defendants’ persisted-in refusal or repudiation as a breach, as contended by the defendant, but as evidence to excuse an actual tender, which the jury found and was warranted in finding that it waived. The defendant’s exceptions are overruled.
The judgment of the District Court is affirmed, with costs to the defendants in error.
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300 F. 81, 1924 U.S. App. LEXIS 3001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armour-co-v-sherburne-ca1-1924.