Number 83.
Opinion,
Me. Justice Claek:
Upon which of the parties to what has been termed the “sold note” of January 15, 1880, rested the obligation to act first ? It is a well established principle of the law, that in a contract for sale and delivery of goods, “ free on board ” vessel, the seller is under no obligation to act, until the buyer names the ship to which the delivery is to be made; for until he knows that, the seller could not put the goods on board: Armitage v. Insole, 12 Q. B. 728; Wackerbarth v. Masson, 3 Camp. 272; Sutherland v. Atkinson, 14 L. T., N. S., 666.; Walton v. Black, 5 Del. 149. The rule is illustrated in our own case of Kunkle v. Mitchell, 56 Pa. 100, where the contract was, that Mitchell would “ deliver on the ears, at Indiana, 75,000 feet of lumber at eighty-five cents per hundred feet.” [509]*509“ This was the controlling clause as to the place of delivery,” says Mr. Justice Read : “ the cars would be either the cars of the plaintiff, or those of the railroad company, and in either case they were to be provided by the plaintiff and not by the defendant.”
But where either the time or the place of delivery is by the nature of the contract, or by its express provisions, at the seller’s option, a different rule must necessarily prevail; in such case, the seller becomes the first actor, and it is his duty to give notice of the time or place, or both, as the case may be, at which it is proposed to deliver the goods, before any obligation rests upon the buyer to name the ship, upon board of which they are to be delivered; for until the seller declares his election as to time and place, the buyer could not know when or where to have the vessel ready: Brooklyn Oil Refinery v. Brown, 38 How. P. 444; Rodgers v. Van Hoesen, 12 Johns. 221; Benj. on Sales, 1023.
We do not understand these general principles of the law to be either doubted or denied; they are founded in the usages and necessities of trade, and are of general application.
Referring to the contract upon which this suit is brought, we find that Waterman & Co., on January 15, 1880, sold to Henry S. Eckert eighty-nine hundred tons of German blooms; 4366 tons Bochum make, and 4534 Rhenish Company’s make,Bessemer blooms, “ deliverable during the months of December, A. D. 1879, January, February, and March, A. d. 1880, f. o. b. vessels in continental ports, at seven pounds five .shillings (7 pounds 5 shillings) per ton of 2240 pounds; Rotterdam and Antwerp being ports meant.”
It is contended, in the first place, on the part of Eckert, the •defendant, that, as to the 4366 tons of Bochum blooms the rule requiring the buyers to name the vessel was satisfied by the special provisions of the contract. It is conceded that these were the same blooms which Sanders Brothers by the sold note of October 31, 1879, and its supplement of November 17th, in the same year, had transferred to Waterman & Co. The contract of the latter date contained the following clause : “shipping directions, per steam vessels to Philadelphia at 10s. 6d. per ton for forty-five hundred tons, as per freight contract in the hands of Sanders Brothers, and accepted by Waterman [510]*510& Co.” This freight contract was not in evidence, but the fact of its existence is admitted, and this was all that was attempted to be shown. It is clear, certainly, that as between Sanders Brothers and Waterman & Co., transportation was to this extent in some way provided for. The contract was “ in the hands of Sanders Brothers,” the shippers, and was “accepted by Waterman & Co.,” and the shipping directions, pro tanto, were in accordance with it. On the 15th January, 1880, Waterman & Co. sold the same blooms to Eckert, and agreed to turn over the freight contract to Mm, referring to it as “ covering forty-five hundred tons of blooms, by steamer from Antwerp to Philadelphia, at ten sMllings six pence per ton, deducting 634 tons in port by Zeeland.” The sold note of November 17, 1879, was, or was to have been, appended to the contract in suit; and it is plain, we think, that the parties supposed the sMpping directions .to the extent of tins freight contract to be complete. The freight contract was for transportation of blooms from Antwerp, one of the ports of delivery agreed upon by the parties, to Philadelphia; and the transfer of it being part and parcel of the transaction involving the sale, was without doubt referable to the transportation of the particular blooms wMch were the subject of the sale.
The rule requiring the buyer to name the sMp is, of course, satisfied when satisfactory specific sMpping directions have been agreed upon and the means of transportation placed in the seller’s hands ; in such case the parties are governed by the directions expressed in their contract, and until these are known to have failed no other provision or designation will be required. We think the learned referee was right in holding that the transfer of the freight contract in the hands of Sanders Brothers to Eckert, and Ms acceptance of it, was a complete provision on his part, to that extent, for vessels at Antwerp to receive the Bochum blooms, and the sellers had no right to notice of that wMch by the terms of their contract they already knew.
As to the transportation of the Rhenish blooms, it is contended by the plaintiffs that there was no specific provision made, and that the defendant was required to name the slfip before the duty of delivery devolved upon them. It will be observed that the freight contract was not yet exhausted by the [511]*511deliveries made upon either or both lots of blooms, and the defendant contends that until this was exhausted no duty devolved upon him in this respect. But this contract was transferred by Sanders Brothers to Waterman & Co. in connection with the contract of November 17, 1879, and was then especially applicable to the Bochum blooms; it was in Sanders’ hands for shipment of this particular lot of blooms, and in the absence of any other arrangement would we think, be regarded as a shipping direction or provision for that lot only, the contract for which Sanders Brothers at least had a right to regard as distinct and separate from that with Clark, Post & Martin. But the defendants contend that as alternate ports, Rotterdam and Antwerp, were named in the contract, and no particular time was designated for delivery of the blooms, the option was with the sellers to decide at which of the ports and at what time delivery would be made, and that the ship could only be named on notice from the seller that the blooms were ready and would be delivered at one or other of the ports named at a specified time.
The blooms were to be delivered f. o. b. vessel at the ports of Rotterdam or Antwerp during the months of December, January, February and March, then next ensuing; and upon notice from time to time that the blooms were in readiness it was the duty of the buyer to name the vessel; and he might, we think, have named the vessel in either port, and the seller would have been obliged to make the delivery accordingly; the delivery was to be made, not at Rotterdam or Antwerp, but on board vessel, whether the vessel was at Rotterdam or Antwerp. This would seem to have been the construction which the parties themselves put upon their contract. That this was the understanding of the parties to the original contracts cannot be doubted, and it is plain from the letter of March 5, 1880, written by Matthews, as the agent of Eckert, that he understood the contract in the same way.
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Number 83.
Opinion,
Me. Justice Claek:
Upon which of the parties to what has been termed the “sold note” of January 15, 1880, rested the obligation to act first ? It is a well established principle of the law, that in a contract for sale and delivery of goods, “ free on board ” vessel, the seller is under no obligation to act, until the buyer names the ship to which the delivery is to be made; for until he knows that, the seller could not put the goods on board: Armitage v. Insole, 12 Q. B. 728; Wackerbarth v. Masson, 3 Camp. 272; Sutherland v. Atkinson, 14 L. T., N. S., 666.; Walton v. Black, 5 Del. 149. The rule is illustrated in our own case of Kunkle v. Mitchell, 56 Pa. 100, where the contract was, that Mitchell would “ deliver on the ears, at Indiana, 75,000 feet of lumber at eighty-five cents per hundred feet.” [509]*509“ This was the controlling clause as to the place of delivery,” says Mr. Justice Read : “ the cars would be either the cars of the plaintiff, or those of the railroad company, and in either case they were to be provided by the plaintiff and not by the defendant.”
But where either the time or the place of delivery is by the nature of the contract, or by its express provisions, at the seller’s option, a different rule must necessarily prevail; in such case, the seller becomes the first actor, and it is his duty to give notice of the time or place, or both, as the case may be, at which it is proposed to deliver the goods, before any obligation rests upon the buyer to name the ship, upon board of which they are to be delivered; for until the seller declares his election as to time and place, the buyer could not know when or where to have the vessel ready: Brooklyn Oil Refinery v. Brown, 38 How. P. 444; Rodgers v. Van Hoesen, 12 Johns. 221; Benj. on Sales, 1023.
We do not understand these general principles of the law to be either doubted or denied; they are founded in the usages and necessities of trade, and are of general application.
Referring to the contract upon which this suit is brought, we find that Waterman & Co., on January 15, 1880, sold to Henry S. Eckert eighty-nine hundred tons of German blooms; 4366 tons Bochum make, and 4534 Rhenish Company’s make,Bessemer blooms, “ deliverable during the months of December, A. D. 1879, January, February, and March, A. d. 1880, f. o. b. vessels in continental ports, at seven pounds five .shillings (7 pounds 5 shillings) per ton of 2240 pounds; Rotterdam and Antwerp being ports meant.”
It is contended, in the first place, on the part of Eckert, the •defendant, that, as to the 4366 tons of Bochum blooms the rule requiring the buyers to name the vessel was satisfied by the special provisions of the contract. It is conceded that these were the same blooms which Sanders Brothers by the sold note of October 31, 1879, and its supplement of November 17th, in the same year, had transferred to Waterman & Co. The contract of the latter date contained the following clause : “shipping directions, per steam vessels to Philadelphia at 10s. 6d. per ton for forty-five hundred tons, as per freight contract in the hands of Sanders Brothers, and accepted by Waterman [510]*510& Co.” This freight contract was not in evidence, but the fact of its existence is admitted, and this was all that was attempted to be shown. It is clear, certainly, that as between Sanders Brothers and Waterman & Co., transportation was to this extent in some way provided for. The contract was “ in the hands of Sanders Brothers,” the shippers, and was “accepted by Waterman & Co.,” and the shipping directions, pro tanto, were in accordance with it. On the 15th January, 1880, Waterman & Co. sold the same blooms to Eckert, and agreed to turn over the freight contract to Mm, referring to it as “ covering forty-five hundred tons of blooms, by steamer from Antwerp to Philadelphia, at ten sMllings six pence per ton, deducting 634 tons in port by Zeeland.” The sold note of November 17, 1879, was, or was to have been, appended to the contract in suit; and it is plain, we think, that the parties supposed the sMpping directions .to the extent of tins freight contract to be complete. The freight contract was for transportation of blooms from Antwerp, one of the ports of delivery agreed upon by the parties, to Philadelphia; and the transfer of it being part and parcel of the transaction involving the sale, was without doubt referable to the transportation of the particular blooms wMch were the subject of the sale.
The rule requiring the buyer to name the sMp is, of course, satisfied when satisfactory specific sMpping directions have been agreed upon and the means of transportation placed in the seller’s hands ; in such case the parties are governed by the directions expressed in their contract, and until these are known to have failed no other provision or designation will be required. We think the learned referee was right in holding that the transfer of the freight contract in the hands of Sanders Brothers to Eckert, and Ms acceptance of it, was a complete provision on his part, to that extent, for vessels at Antwerp to receive the Bochum blooms, and the sellers had no right to notice of that wMch by the terms of their contract they already knew.
As to the transportation of the Rhenish blooms, it is contended by the plaintiffs that there was no specific provision made, and that the defendant was required to name the slfip before the duty of delivery devolved upon them. It will be observed that the freight contract was not yet exhausted by the [511]*511deliveries made upon either or both lots of blooms, and the defendant contends that until this was exhausted no duty devolved upon him in this respect. But this contract was transferred by Sanders Brothers to Waterman & Co. in connection with the contract of November 17, 1879, and was then especially applicable to the Bochum blooms; it was in Sanders’ hands for shipment of this particular lot of blooms, and in the absence of any other arrangement would we think, be regarded as a shipping direction or provision for that lot only, the contract for which Sanders Brothers at least had a right to regard as distinct and separate from that with Clark, Post & Martin. But the defendants contend that as alternate ports, Rotterdam and Antwerp, were named in the contract, and no particular time was designated for delivery of the blooms, the option was with the sellers to decide at which of the ports and at what time delivery would be made, and that the ship could only be named on notice from the seller that the blooms were ready and would be delivered at one or other of the ports named at a specified time.
The blooms were to be delivered f. o. b. vessel at the ports of Rotterdam or Antwerp during the months of December, January, February and March, then next ensuing; and upon notice from time to time that the blooms were in readiness it was the duty of the buyer to name the vessel; and he might, we think, have named the vessel in either port, and the seller would have been obliged to make the delivery accordingly; the delivery was to be made, not at Rotterdam or Antwerp, but on board vessel, whether the vessel was at Rotterdam or Antwerp. This would seem to have been the construction which the parties themselves put upon their contract. That this was the understanding of the parties to the original contracts cannot be doubted, and it is plain from the letter of March 5, 1880, written by Matthews, as the agent of Eckert, that he understood the contract in the same way. But the buyer was certainly entitled to reasonable notice of the time deliveries were to be made; it is unreasonable to suppose that it was in contemplation of the parties that the buyer should provide vessels and name them to the seller from time to time during the four months specified for delivery, upon an uncertainty ; for he could not know when the seller might have the blooms [512]*512ready, and he was certainly not obliged to hold the vessels in readiness at all times during the entire period in mere anticipation of deliveries which might happen to be made; he was obliged, however, to hold himself in readiness to accept the blooms and to name the ship on reasonable notice: Armitage v. Insole, supra.
It seems from the facts found by the referee, that Sanders Bros, had some understanding with Waterman & Co., in virtue of which they, at the outset, undertook as matter of favor, to procure vessels. They were under the impression that they had authority to make shipping arrangements for the entire lot of blooms; but both Eckert and Waterman & Co. repudiated this authority, and insisted that the arrangement referred to was provisional only, and applied to a certain exigency which was past; whereupon, on March 10, 1880, Clark, Post & Martin by letter notified Matthews, the agent of Eckert, as follows: “ You must give positive instructions now as to the shipment of the balance that freight may not have been engaged for, as we will not accept or assume any responsibility in connection with the matter; we agree to deliver the stuff f. o. b., and it is the purchaser’s business to furnish vessels; what we have done is simply from courtesy, and we have communicated to Sanders Mr. Waterman’s instructions, etc.” On March 16, 1880, they further instructed Matthews that they were awaiting instructions for shipment of certain blooms “lying at Antwerp; ” that the goods “were quite ready awaiting shipment,” etc. This would seem to have been the first notice that the blooms were, or would be, ready for delivery; but they were at Antwerp; and, as we have already said, it was clearly in the contemplation of the parties that Eckert, should name the port. As he had to provide the shipping and pay the freights, it was of the highest importance to him that the blooms should be delivered at the port which offered the best and cheapest facilities for shipping. Accordingly on March 18th, Matthews in Eckert’s behalf instructed Sanders Bros., through Clark, Post & Martin, as follows: “ I have been advised by parties here that freights are readily obtained from Rotterdam, and, in fact, they have been offered a contract to cover the whole balance to be shipped from that port; blooms at 13s. Qd. to Philadelphia or 12s. Qd. to New York or Baltimore. I therefore [513]*513■desire that in your next cable you will advise Messrs. Sanders Brothers not to make the deliveries at Antwerp, at additional ■expense of Is. 6d., but make the shipments from Rotterdam at not exceeding that price before named; or in case they can’t do that I am not in position to close the contract for the balance. Please give me your views on this subject, as you see it is a very serious matter to my principals, maldng a difference of some 3s. or 4s. per ton, which you know at the present time is a profit.”
We agree with the learned referee that upon receipt of these instructions, it was the duty of Sanders Brothers and consequently of Waterman & Co., either to have the blooms at the port of Rotterdam and to ship them at the rates named, or to notify Eckert that the blooms wére ready for shipment to that port, in order that he might name the vessel to which deliveries could be made. Receiving no reply whatever to the letter of March 18th and no notice of readiness’to deliver at Rotterdam, Eckert might well suppose, under the particular facts of this ■case, that satisfactory arrangements had been made for shipping the blooms in accordance with his instructions.
Besides, Sanders Brothers were the shippers; the providing of vessels and the arrangements for transportation were to enable them to ship the blooms for Waterman & Co. Clark, Post & Martin were responsible to Waterman & Co., and Waterman ■& Co. to Eckert, for Sanders Bros.’ default in the delivery, ae■cording to the terms and condition of their respective contracts; ■and it is plain that Sanders Bros, neither delivered the blooms ■on board vessel, in accordance with the instructions given through Clark, Post & Martin, nor did they give notice of their readiness to deliver them at Rotterdam, independently of these instructions, and for their default Waterman & Co. are liable to Eckert in this action.
It is true the instructions given through Clark, Post & Martin to Sanders Bros, were not exhibited to Waterman & Co., but Sanders Bros., as we have said, were the shippers, and as such represented Waterman & Co. It was not essential therefore, we think, that Waterman & Co. should have had actual knowledge of them. Sanders Bros, wholly disregarded their instructions and, having failed to comply with the shipping •directions therein contained, they should have given notice of [514]*514their readiness to deliver at Rotterdam; then the 'duty of providing shipping would have devolved on Eckert. Upon an examination of the whole case we are constrained to accept the conclusions of the learned referee, and therefore
The judgment is affirmed.
No. 82. For the reasons fully expressed in our opinion filed at 83 January Term, 1886, Dwight, Exr. v. Eckert, this
Judgment is affirmed.