THAYER, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The defense in this case is grounded upon the assumption that the Rumford Falls Paper Company, the plaintiff below, expressly warranted that all the paper to be supplied under its contract with the publishing company should be of such a kind that each i,ooo eight-page sheets at any time produced by the press would weigh 108 pounds; and the first question to be determined is whether this assumption is well founded.
The contract contains no such warranty in terms. It does contain an express agreement that the paper to be supplied shall be “of same [522] quality, sizes, and weight as that you are furnishing us under our present contract”; but no effort was made by the defendant on the trial to show what was the actual weight or usual run of the paper that was furnished under the contract in force when the last contract was made. Nor does the defendant count upon the last-mentioned provision of the agreement in its answer, or place any reliance thereon, so far as we can ascertain. To sustain its allegation concerning an express warranty, it refers to a provision contained in the first contract with the paper company, of date September 21, 1894, which is as follows: “Settlements shall be made upon the basis of 108 pounds producing 1,0008-page sheets 35V8X43- Average to be computed on full car lots”; and it contends, apparently, that this stipulation bound the plaintiff at its peril to deliver only such paper as would weigh 108 pounds per 1,000 sheets, no' more and no less. This provision, however, does not seem to have been inserted in the contract with a view of binding the paper company not to furnish any paper or rolls of paper weighing less than 108 pounds per 1,000 eight-page sheets, since the provision was followed immediately by the further stipulation that, when the paper supplied happened to overrun the last-mentioned weight, it should be paid for at that weight, thus giving the publish-, ing company the benefit of any overweight, and that when it happened to fall below the weight mentioned it should be paid for according to its actual weight. Impliedly, at least, this latter clause bound the defendant to accept and pay for paper which weighed somewhat more or less than 108 pounds per 1,000 sheets. These provisions were inserted, we think, with a view to convenience in making settlements, and not for the purpose of prescribing an absolute standard of weight for each roll, from which there could be no departure without incurring a liability in damages as for a breach of a warranty. The weight of the paper, so far as there was an express agreement on that point, had been specified previously in the clause to which reference has already been made; and while, as above remarked, the defendant made no effort to show what was the weight or quality of the paper that was being supplied when the contract in suit was entered into, yet the plaintiff did offer considerable testimony, which was not controverted, that the quality and weight of its paper improved continuously from 1894 to 1898; that the paper as it was produced was compared constantly with samples that were used when the first contracts were made; and that the paper produced and delivered during the year 1897 was fully up to sample, and as good as the paper which had been delivered to the publishing company previously and by it accepted. The proyisions concerning the method of making settlements clearly show that the contracting parties well understood, what the testimony discloses to have been the fact, namely, that the process of manufacturing paper in large quantities for newspaper use, such as that involved in the present instance, could not be so conducted that the paper in each of a large number of rolls would have a perfectly uniform run, being at all places of the same thickness, so as to attain precisely the same weight per 1,000 sheets. The parties to the agreement assumed that the rolls would probably vary somewhat in weight, and they made a very reasonable provision for such a variance, in the manner above [523] shown, by agreeing that the publishing company should never pay for more than the actual weight of the paper supplied; whereas, if the paper overran at any time the weight named as a basis of settlement, it should not, on that account, be compelled to pay for the surplus weight. It is impossible to read the provisions of the contract in suit relative to the manner of making settlements without being impressed with the conviction that both parties well knew that the paper to be supplied would not run evenly, so as to maintain at all times precisely the same weight. They were doubtless aware that there were difficulties attending the manufacture of paper, which could not be overcome entirely, and, knowing this fact, they prescribed a remedy in the manner of making settlements, which they deemed just, neither party intending to impose on the other an obligation which could not be strictly performed and to hold it accountable in damages for its nonperformance.
Free access — add to your briefcase to read the full text and ask questions with AI
THAYER, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The defense in this case is grounded upon the assumption that the Rumford Falls Paper Company, the plaintiff below, expressly warranted that all the paper to be supplied under its contract with the publishing company should be of such a kind that each i,ooo eight-page sheets at any time produced by the press would weigh 108 pounds; and the first question to be determined is whether this assumption is well founded.
The contract contains no such warranty in terms. It does contain an express agreement that the paper to be supplied shall be “of same [522] quality, sizes, and weight as that you are furnishing us under our present contract”; but no effort was made by the defendant on the trial to show what was the actual weight or usual run of the paper that was furnished under the contract in force when the last contract was made. Nor does the defendant count upon the last-mentioned provision of the agreement in its answer, or place any reliance thereon, so far as we can ascertain. To sustain its allegation concerning an express warranty, it refers to a provision contained in the first contract with the paper company, of date September 21, 1894, which is as follows: “Settlements shall be made upon the basis of 108 pounds producing 1,0008-page sheets 35V8X43- Average to be computed on full car lots”; and it contends, apparently, that this stipulation bound the plaintiff at its peril to deliver only such paper as would weigh 108 pounds per 1,000 sheets, no' more and no less. This provision, however, does not seem to have been inserted in the contract with a view of binding the paper company not to furnish any paper or rolls of paper weighing less than 108 pounds per 1,000 eight-page sheets, since the provision was followed immediately by the further stipulation that, when the paper supplied happened to overrun the last-mentioned weight, it should be paid for at that weight, thus giving the publish-, ing company the benefit of any overweight, and that when it happened to fall below the weight mentioned it should be paid for according to its actual weight. Impliedly, at least, this latter clause bound the defendant to accept and pay for paper which weighed somewhat more or less than 108 pounds per 1,000 sheets. These provisions were inserted, we think, with a view to convenience in making settlements, and not for the purpose of prescribing an absolute standard of weight for each roll, from which there could be no departure without incurring a liability in damages as for a breach of a warranty. The weight of the paper, so far as there was an express agreement on that point, had been specified previously in the clause to which reference has already been made; and while, as above remarked, the defendant made no effort to show what was the weight or quality of the paper that was being supplied when the contract in suit was entered into, yet the plaintiff did offer considerable testimony, which was not controverted, that the quality and weight of its paper improved continuously from 1894 to 1898; that the paper as it was produced was compared constantly with samples that were used when the first contracts were made; and that the paper produced and delivered during the year 1897 was fully up to sample, and as good as the paper which had been delivered to the publishing company previously and by it accepted. The proyisions concerning the method of making settlements clearly show that the contracting parties well understood, what the testimony discloses to have been the fact, namely, that the process of manufacturing paper in large quantities for newspaper use, such as that involved in the present instance, could not be so conducted that the paper in each of a large number of rolls would have a perfectly uniform run, being at all places of the same thickness, so as to attain precisely the same weight per 1,000 sheets. The parties to the agreement assumed that the rolls would probably vary somewhat in weight, and they made a very reasonable provision for such a variance, in the manner above [523] shown, by agreeing that the publishing company should never pay for more than the actual weight of the paper supplied; whereas, if the paper overran at any time the weight named as a basis of settlement, it should not, on that account, be compelled to pay for the surplus weight. It is impossible to read the provisions of the contract in suit relative to the manner of making settlements without being impressed with the conviction that both parties well knew that the paper to be supplied would not run evenly, so as to maintain at all times precisely the same weight. They were doubtless aware that there were difficulties attending the manufacture of paper, which could not be overcome entirely, and, knowing this fact, they prescribed a remedy in the manner of making settlements, which they deemed just, neither party intending to impose on the other an obligation which could not be strictly performed and to hold it accountable in damages for its nonperformance.
We are of opinion, therefore, that the defendant below failed to show either an express or an implied warranty, such as was counted upon in its answer, and for the breach of which it sought to recoup damages to the amount of $4,312.36, thereby absorbing the balance due on the plaintiff’s account, for paper actually delivered.. It may be conceded that the parties to the agreement assumed that the paper to be supplied would weigh approximately 108 pounds per 1,000 eight-page sheets, and that the paper company would endeavor in good faith to produce paper of about that weight by giving proper attention to the process of manufacture. They realized, however, that, notwithstanding the care which might be exercised, some of the paper produced would, to some extent, exceed or fall below that weight, and they accordingly provided for that contingency by adopting a mode for estimating the weight for the purpose of making settlements that would afford the defendant full protection against losses resulting from the delivery of paper which was heavier than was deemed necessary. The method of making settlements so prescribed by the parties themselves also had the effect, we think, of excluding claims for damages incident to such small and seemingly unimportant variations in the weight of paper as the testimony in this case discloses — the same being variations which do not appear to have been occasioned by any want of good faith, or by any design on the part of the plaintiff company to avoid a full compliance with the terms of its contract. None of the paper that was supplied during the months of September, October, November, and December, 1897, was rejected by the defendant company as unsuitable for its use, but all of it was in fact consumed; and such complaints as were made in the meantime seem to have been made with a view of inducing the paper company to consent to a reduction of the contract price, the value of paper having declined to some extent after the execution of the contract. Moreover, the testimony that was offered at the trial with a view of showing that the publishing company had sustained special damage by the use of some lightweight paper during the months in question was general and unsatisfactory, and we very much doubt whether it would have warranted a jury in finding that any damage had been sustained on that account. It is un»ecessary, however, to express a definite opinion on that point, [524] since we conclude, as heretofore stated, that the defendant did not succeed in establishing such a warranty as it pleaded and relied upon in its answer. For the same reason all the errors specified in the assignment of errors relating to rulings upon testimony and the refusal of instructions become, in our judgment, immaterial, and any discussion thereof is unnecessary.
We are satisfied that the judgment below was for the right party, and it is accordingly affirmed.