Youqua v. Nixon

30 F. Cas. 887

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1816
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(charging jury). The written contract was, to deliver four hundred and fifty chests of Young Hyson tea, of the first chop, at thirtyTseven tales the piehol. If that quantity and quality could not be procured at the Canton market, the plaintiff undertook more than he was able to perform; but this does not excuse him from a claim of damages, for his breach of contract.' He should have taken care, before he made the contract, to ascertain his ability to perform it; and in case the state of the market would not enable him to do so, he might have qualified the expressions of the contract. The first question is, was the original written contract put an end to, by the subsequent change as to the quantity and price? It is admitted, that it was not waived by any express agreement. The contract consisted of three particulars, quantity, quality and price. Now it does not follow, that a subsequent agreement to vary the price, or quantity, or both, does, necessarily, dispense with the obligation in respect to quality. Under circumstances, it may do so, but it is at most an implication; and the evidence should be such as to show, that the parties intended to dispense with the same. In this case, it is proved by the supercargoes, that they did not intend to do away with the contract But if this was the effect of the subsequent agreement, still the plaintiff was bound by his promise, to furnish teas, on which he would not be ashamed to put his chop; and if the jury are of opinion these words do not import teas of the first quality, conformable with the terms of the contract, they cannot mean teas of an inferior quality, and such as it is proved were brought to the Philadelphia market. Upon this point, however, the jury must judge. Upon the whole, If they are of opinion, under all the circumstances, • that the original contract was intended -to have been given up; still, if the supercargoes were in the power of the plaintiff, and found It necessary to yield to imposition, in order to obtain a cargo at all, and a clearance from Canton; the defendants ought not to be bound, to recei re- teas of an inferior quality to what was stipulated to be delivered. If the jury should be of opinion, that the teas furnished, were not agreeable to the contract, and were inferior to other teas of the agreed quality; the difference will furnish the rate of damages, to be applied to the first cost. They will calculate interest, on the balance due on the notes to this day; and then deduct from it, the sum to which, by the above rule, the defendants are entitled, for the plaintiff’s breach of contract.

Verdict for 1647 dolls. 55 cts.