Leland v. Agnew

15 F. Cas. 297, 31 Hunt Mer. Mag. 456

Opinion

HELD BY

THE COURT

(INGERSOLL, District Judge):

That the contract of the libelant was to deliver the tobacco at the Tobacco Inspection wharf, and that upon the performance of that contract on his part the payment of freight depends, unless there has been a waiver of performance by the owner of the goods, or some act on his part which prevents performance. That the libelant was not prevented from performing his contract by the necessity of discharging his ship at quarantine; the tobacco was not detained, and he was permitted to tranship it into lighters to bring it to the city, and could have done so. The terms of the contract are express, precise, and unconditional. When no technical mercantile terms are used in it— when there is no uncertainty in regard to it— evidence cannot be introduced to vary its apparent import and to show that by usage and custom, under certain circumstances, the contract need not be kept and performed according to its terms. Usage cannot be set up to vary the terms of an express contract. That the usage attempted to be proved by the libelant, authorizing him to deliver these goods at quarantine under the circumstances, in spite of the clause in the bill of lading, is not consistent with the contract, but contrary to it, and proof of it cannot be admitted. That the proof offered by the libelant is insufficient to establish such a usage, even if it could be admitted. That the receipt of the tobacco by the respondents, after the notice given them by the libelant, was no waiver by them of their right to demand a delivery at Tobacco Warehouse wharf.

Decree, therefore, for libelant for $496.50, the amount tendered by the respondents, and the costs of the respondents subsequent to the tender deducted.