Parker v. Tiers

E.D. Pennsylvania

Parker v. Tiers

29 F. 800, 1887 U.S. Dist. LEXIS 191

DecidedFebruary 4, 1887

StatusPublished

This text of 29 F. 800 (Parker v. Tiers) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Parker v. Tiers, 29 F. 800, 1887 U.S. Dist. LEXIS 191 (E.D. Pa. 1887).

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Opinion

Butler, J.

By the contract, respondent undertook to furnish a cargo '“of about 150 tons” of bones, and the libelant undertook to carry this number of tons. There was no express stipulation where they should be .stored, but it seems to have been contemplated that, after filling the hold, the balance should be placed on deck. The contention by respondent that the libelant, when loading, claimed that he was only to receive what ■could be stored in the hold., and refused to receive more, is not sustained by the proofs. It is true that Mr. Pitch swears to this, but his testitimony is met by that of the master, who, although not called after Mr. Pitch had testified, nor in anticipation or with knowledge of what this witness would say, swears to facts wholly inconsistent with Mr. P.’s testimony. All the material circumstances of the case, bearing on the subject, also, are irreconcilable with Mr. Fitch’s testimony. At the very time when this witness (whose miscalculation, or mistake, caused the litigation) says the libelant refused to take more bones, the libelant was protesting in writing against the violation of his contract in not furnishing the 150 tons. Prom the beginning to the end the libelant’s conduct was consistent with the position that he expected to carry this quantity, and with no other. It is impossible, therefore, to avoid the conclusion that Mr. Pitch is mistaken, or unreliable.

If the respondent had furnished 145 tons, I would hold that the terms ■of the contract had been complied with. I am inclined to think that a materially greater shortage than this would not be allowable. He furnished 1Ó6, and must be held responsible for failure to furnish the balance of 145, to-wit, 39. The libelant’s damages are therefore what he would have made by carrying this additional quantity according to the •terms of the contract.

A decree will be entered accordingly.

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Butler, J.

By the contract, respondent undertook to furnish a cargo '“of about 150 tons” of bones, and the libelant undertook to carry this number of tons. There was no express stipulation where they should be .stored, but it seems to have been contemplated that, after filling the hold, the balance should be placed on deck. The contention by respondent that the libelant, when loading, claimed that he was only to receive what ■could be stored in the hold., and refused to receive more, is not sustained by the proofs. It is true that Mr. Pitch swears to this, but his testitimony is met by that of the master, who, although not called after Mr. Pitch had testified, nor in anticipation or with knowledge of what this witness would say, swears to facts wholly inconsistent with Mr. P.’s testimony. All the material circumstances of the case, bearing on the subject, also, are irreconcilable with Mr. Fitch’s testimony. At the very time when this witness (whose miscalculation, or mistake, caused the litigation) says the libelant refused to take more bones, the libelant was protesting in writing against the violation of his contract in not furnishing the 150 tons. Prom the beginning to the end the libelant’s conduct was consistent with the position that he expected to carry this quantity, and with no other. It is impossible, therefore, to avoid the conclusion that Mr. Pitch is mistaken, or unreliable.

If the respondent had furnished 145 tons, I would hold that the terms ■of the contract had been complied with. I am inclined to think that a materially greater shortage than this would not be allowable. He furnished 1Ó6, and must be held responsible for failure to furnish the balance of 145, to-wit, 39. The libelant’s damages are therefore what he would have made by carrying this additional quantity according to the •terms of the contract.

A decree will be entered accordingly.

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Bluebook (online)

29 F. 800, 1887 U.S. Dist. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-tiers-paed-1887.