[49]*49LOUIS J. BRIGHT VS PRODUCE & WARRANT CO., INC.
No. 8095
CHARLES P. CLAIBORNE, JUDGE.
This is a damage suit brought by a purchaser against his vendor for failure to deliver the thing sold.
The plaintiff entered inté the following contract with the defendant:
” New Orleans,May 21st,1919
Sold for account of:
Produce & Warrant Co., Inc.,
New York
To Mr. Louis J. Bright,
New Orleans, Aa.
About two hundred Pifty (250) bags of Santos Coffee grading 4 - 5's at twenty-three and one-half cents (23tc) per-pound. Shipment of A. Perreira & Co., Santos,- advised per S/S "Sumatra Mam" to New Orleans - Described as - Good Bean - Good Roasters - soft - Terns: Ex ship - cash leas 2% in 10 days from average - date of weight certificate - sound and made sound - Brazil Gradings - No Arrival - No Sale - Any import duty, internal-revenue or any other tax imposed by the United States Government on this coffee is for account of buyer.
Signed: Produce- & Warrant Co., Inc..
New York Agency
Signed: J. Maes, Agent
Accepted: Louis J.. Bri^it
Brokers! .Produce. & Warrant-Co. tii ^
[50]*50The defendant afterwards addressed ■"'to' the-plaintiff the fold owing letter:
"Produce & Warrant Co
New York Agency
78-80 Wall Street
Coffee Department
Hew York, July 22nd,„•1919
Hr. Louis.J. Bright,
Hew Orleans, La.
Gentlemen:’ We understand from a cablegram received that Messrs A. Yorréira & Co., Santos, have shipped or intend to ship as follows for your account:
Vessel S/S Raifuku Ham - Quantity 250 Bags -..Grade 4 - 5's - Price 23&/ r Purchase date May 21st.,.-
Yours truly,
Produce & Warrant Co., Inc¿,
New York Agency
Signed Y. Glanesmay
Subject to Correction".
Later on, the defendant sent the following notice to the plaintiff:
"Produce & Warrant Co., Inc.,
Hew York Agency
73-30 Wall Street
Arrival Notice
New York, July 31st, 1919
Messrs.Louis J. Bright
New Orleans, La.
Dear Sirs: Please note arrival per S.S. IMfUku Man? 250 Bags of coffee against vour contract of May 21.
As soon as we receive further particulars we will notify you.
Yours very truly,
Produce &-Warrant Coi, Indv *"S&#ak
[51]*51The defendáh’í”theft sen» ms mTb"«ffg*Invrf!ws W> the plaintiff:
"Produce & Warrant Co., Inc.
New York Agency
78-80 Wall Street
Coffee Department
New York City,August 4th, 1919
Proforma
To Mr. Louis J. Bright
New Orleans, La.
Terms: Contract May 21st, 1919. Cash less 2# in 10 days from average date of weight return - Payable in New York Exchange only - 250 Bag3 of Santos Coffee arrived at Raifucu Kara, Tent 240 - Weighing net about 32500 lbs. @ 23^, $7637.50".
The Raifuku Mam arrived in New'Orleans on July 31st, 1919. According to its manifest, it carried 4000 bags of coffee shipped by A. Ferreira & Co. to the defendant, and marked P W C -A- B. The defendant refused to deliver any part of that coffee to'the plaintiff. Hence this suit. The question to be decided is, was it the duty of the defendant to have delivered to the plaintiff 250 bags out of that lot of 4000?
The defense is that' the defendant had a contract with A. C. Israel of New York to deliver to him 4000 bags of coffee, and that he was under obligation to deliver to him the 4000 bags which arrixed on board the Raifuku Mam that said bags belonged to A. C. Israel and that no oart of them belonged to the plaintiff.
The contract with A. C. Israel is in the following words:
"New York, May 20th, 1919
Sold for account of Produce & Warrant Co., N. Y.
To A. C. Israel N. Y.
About Four Thousand (4000) bags of coffee. Sound and [52]*52damaged portion, shipped or to bo shipped from Sontos to Hew Orleans, Shipner.t prompt eto. etc."
'He construe the contract sued on to mean that the defendant had sold to the plaintiff 250 bags of coffee already shipped or to be shipped to the defendant by A. Ferreira & Co. on board -„he ship Sumatra 'lam, or on any ship substituted in its place. 7/e are confirmed in this construction by the documents emanating from the defendant itself - end which we have copied hereinabove. The first letter from the defendant advises the plaintiff that it
"understands from a cablegram received that Messrs* A. Ferreira & Co., Sontos, have shipped or intend to ship as follows for your account (plaintiff's): Vessel. S/S Raifuku Ham - quantity 250 bags - grade 4 -5s Price 23£- - purchase, date May 21st."
The next- letter dated July 31st, 1919 from,.the defendant advises the plaintiff of the arrival 'of the
"Raifuku Mam with 250 bags of coffee against his contract of May 21st."
The third document is an invoice of defendant against plaintiff for
"250 bags of Santo3 Coffee arrived at Raifucu Mam, Vent 240 - & c ".
These letters show conclusively that the defendant understood that the 250 bags of coffee tohioh they had sold to the plaintiff were on board the ship Raifuku and that they were'Obligated to deliver them to him, and that he was.bound to receive them. Hence these notices. The defense that the 4000 bags on board the Raifuku were the property of A.>C..'I,sra^li or that the defendant was bound to deliver theft to rhinv■ does' .- not seem to us to have any merit. The 40.00 bags .were not1-the property of Israel, nor could he have claimed them'.’in .execution .of his contract. If the defendant delivered' them .tqr-Tsi’afelV [53]*53it was because he chose to do so. It must be observed that the contract \ras not for the definite number of 4000, but only for "about" 4000 bails', and that a delivery for a less number would have satisfied me contract.
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[49]*49LOUIS J. BRIGHT VS PRODUCE & WARRANT CO., INC.
No. 8095
CHARLES P. CLAIBORNE, JUDGE.
This is a damage suit brought by a purchaser against his vendor for failure to deliver the thing sold.
The plaintiff entered inté the following contract with the defendant:
” New Orleans,May 21st,1919
Sold for account of:
Produce & Warrant Co., Inc.,
New York
To Mr. Louis J. Bright,
New Orleans, Aa.
About two hundred Pifty (250) bags of Santos Coffee grading 4 - 5's at twenty-three and one-half cents (23tc) per-pound. Shipment of A. Perreira & Co., Santos,- advised per S/S "Sumatra Mam" to New Orleans - Described as - Good Bean - Good Roasters - soft - Terns: Ex ship - cash leas 2% in 10 days from average - date of weight certificate - sound and made sound - Brazil Gradings - No Arrival - No Sale - Any import duty, internal-revenue or any other tax imposed by the United States Government on this coffee is for account of buyer.
Signed: Produce- & Warrant Co., Inc..
New York Agency
Signed: J. Maes, Agent
Accepted: Louis J.. Bri^it
Brokers! .Produce. & Warrant-Co. tii ^
[50]*50The defendant afterwards addressed ■"'to' the-plaintiff the fold owing letter:
"Produce & Warrant Co
New York Agency
78-80 Wall Street
Coffee Department
Hew York, July 22nd,„•1919
Hr. Louis.J. Bright,
Hew Orleans, La.
Gentlemen:’ We understand from a cablegram received that Messrs A. Yorréira & Co., Santos, have shipped or intend to ship as follows for your account:
Vessel S/S Raifuku Ham - Quantity 250 Bags -..Grade 4 - 5's - Price 23&/ r Purchase date May 21st.,.-
Yours truly,
Produce & Warrant Co., Inc¿,
New York Agency
Signed Y. Glanesmay
Subject to Correction".
Later on, the defendant sent the following notice to the plaintiff:
"Produce & Warrant Co., Inc.,
Hew York Agency
73-30 Wall Street
Arrival Notice
New York, July 31st, 1919
Messrs.Louis J. Bright
New Orleans, La.
Dear Sirs: Please note arrival per S.S. IMfUku Man? 250 Bags of coffee against vour contract of May 21.
As soon as we receive further particulars we will notify you.
Yours very truly,
Produce &-Warrant Coi, Indv *"S&#ak
[51]*51The defendáh’í”theft sen» ms mTb"«ffg*Invrf!ws W> the plaintiff:
"Produce & Warrant Co., Inc.
New York Agency
78-80 Wall Street
Coffee Department
New York City,August 4th, 1919
Proforma
To Mr. Louis J. Bright
New Orleans, La.
Terms: Contract May 21st, 1919. Cash less 2# in 10 days from average date of weight return - Payable in New York Exchange only - 250 Bag3 of Santos Coffee arrived at Raifucu Kara, Tent 240 - Weighing net about 32500 lbs. @ 23^, $7637.50".
The Raifuku Mam arrived in New'Orleans on July 31st, 1919. According to its manifest, it carried 4000 bags of coffee shipped by A. Ferreira & Co. to the defendant, and marked P W C -A- B. The defendant refused to deliver any part of that coffee to'the plaintiff. Hence this suit. The question to be decided is, was it the duty of the defendant to have delivered to the plaintiff 250 bags out of that lot of 4000?
The defense is that' the defendant had a contract with A. C. Israel of New York to deliver to him 4000 bags of coffee, and that he was under obligation to deliver to him the 4000 bags which arrixed on board the Raifuku Mam that said bags belonged to A. C. Israel and that no oart of them belonged to the plaintiff.
The contract with A. C. Israel is in the following words:
"New York, May 20th, 1919
Sold for account of Produce & Warrant Co., N. Y.
To A. C. Israel N. Y.
About Four Thousand (4000) bags of coffee. Sound and [52]*52damaged portion, shipped or to bo shipped from Sontos to Hew Orleans, Shipner.t prompt eto. etc."
'He construe the contract sued on to mean that the defendant had sold to the plaintiff 250 bags of coffee already shipped or to be shipped to the defendant by A. Ferreira & Co. on board -„he ship Sumatra 'lam, or on any ship substituted in its place. 7/e are confirmed in this construction by the documents emanating from the defendant itself - end which we have copied hereinabove. The first letter from the defendant advises the plaintiff that it
"understands from a cablegram received that Messrs* A. Ferreira & Co., Sontos, have shipped or intend to ship as follows for your account (plaintiff's): Vessel. S/S Raifuku Ham - quantity 250 bags - grade 4 -5s Price 23£- - purchase, date May 21st."
The next- letter dated July 31st, 1919 from,.the defendant advises the plaintiff of the arrival 'of the
"Raifuku Mam with 250 bags of coffee against his contract of May 21st."
The third document is an invoice of defendant against plaintiff for
"250 bags of Santo3 Coffee arrived at Raifucu Mam, Vent 240 - & c ".
These letters show conclusively that the defendant understood that the 250 bags of coffee tohioh they had sold to the plaintiff were on board the ship Raifuku and that they were'Obligated to deliver them to him, and that he was.bound to receive them. Hence these notices. The defense that the 4000 bags on board the Raifuku were the property of A.>C..'I,sra^li or that the defendant was bound to deliver theft to rhinv■ does' .- not seem to us to have any merit. The 40.00 bags .were not1-the property of Israel, nor could he have claimed them'.’in .execution .of his contract. If the defendant delivered' them .tqr-Tsi’afelV [53]*53it was because he chose to do so. It must be observed that the contract \ras not for the definite number of 4000, but only for "about" 4000 bails', and that a delivery for a less number would have satisfied me contract. Neither did the contract designate the-name of the ship jipon which the coffee was to be shipped, nor the time within which it was to be shipped. A partial shipment upon the Haifuku, and the balance upon the following ship, would have met the letter of the contract. As to Israel, the condition of the contract:
"Mo arrival, No Sale"
would have protected defsndants. But plaintiff's contract designated the ship, and a quantity sufficient to fill Ms-contract arrived on board the ship. Defendant was therefore hound to fulfil his contract with plaintiff out of that ooffeo; he chose to give Israel the preference, he .must 3tand the consequences,
7,re agree with defendants' counsel that having arrived at the conclusion that the ship and the coffee arrived, there i3 no necessity for us to interpret the words:
"No Arrival, No.Sale".
Plaintiff bought his ooffeo at 23--V cents per pound; the same coffee was worth on July ?lsfc. 29-£ cent3. Plaintiff's loss was therefore 5f cents a pound. Plaintiff claims that the 250 bags weighed 3-1,000 pounds or 132 pounds por bag. Defendant's' bill states the "net" weight at 32,500 pounds, or 130.pounds per bag. V/c prefer to judge the defendant by their own admission. By that woi^it plaintiff's loss is $1060.75.
'Then a vendor fails to deliver the thing he has sold, he owes to the purchaser, as damages, the difference between the contract price and the market price of the thing on the day delivery should have been made. C. C. 2486 (2462); 2458 (2433). 6 E. 553; 13 La. 225; 3 A. 45; 140; 6 A. 491, 760; 14 A. 788; 20 A. 291; 29 A. 286; 36 A. 425; 111 La. 387 (394); 115 La.829: 127 La. 350, 357; 146 La. 5, 296; 35 Cyc 633 (c); 124 U.S.64 (73); 0. N. 1611; 43 Palios Hep. Leg. p 191 &-698; Poithier [54]*54Vents p. 33§72¡;'l Trop. Venta.& 301.
Tho> judgment la reduced from one thousand, sight hundred and ninety-seven 50A00 dollars to one thousand, eight hundred and sixty-ad^ht 75A00 dollars, and, as thus amended, it is affirmed, the costs of appeal to be paid by plaintiff and appelleo.
Judgment amended and affirmed.
October 17th, 1921.