A contract for the sale of goods "shipping or to be shipped
during this month from the Philippines to Philadelphia, per steamer
Empress of India" at a certain price "
ex ship,"
"sea-damaged, if any, to be takes at a fair allowance; no arrival,
no sale," and providing that if, by any unforeseen accident, she is
unable to load and no other steamer can be procured within the
month, the contract is to be void, does not require the goods to be
carried to their destination by the vessel named, and is satisfied
if the goods are put on board of her at the Philippines at the time
specified, and, upon her being so injured on the voyage by perils
of the sea as to be unable to carry them on, are forwarded by her
master by another steamer to Philadelphia.
This was an action of assumpsit, brought April 22, 1890, in the
Circuit Court of the United States for the Eastern District of
Pennsylvania, by Hermann Fortlage and others, aliens, partners
under the name of A. Tesdorpf & Co., against Charles C.
Harrison and others, citizens of Pennsylvania, partners under the
name of Harrison, Frazier & Co., upon a contract in writing for
the purchase of 2,500 tons of sugar. The facts admitted or proved
at the trial were as follows:
Page 161 U. S. 58
The plaintiffs' agent signed, and the defendants accepted, a
contract in writing in the following terms:
"New York, June 22, 1889"
"Messrs. Harrison, Frazier & Co., Philadelphia."
"Dear Sirs: I have this day sold you, for account of Mess. A.
Tesdorpf & Co., of London, about 2,500 tons superior Iloilo
sugars, usual assortment (1/8 No. 1, 1/4 No. 2, and 5/8 No. 3),
shipping or to be shipped during this month from the Philippines to
Philadelphia, per steamer
Empress of India at 5 5/8 c. per
pound
ex ship, net landed weights, two percent tare, cash,
less 2 1/3 percent in ten days from average date of discharge."
"Sea-damaged, if any, to be taken at a fair allowance."
"No arrival, no sale."
"Should the steamer, through any unforeseen circumstance, such
as accidents of the seas, stress of weather, etc., be unable to
load these sugars within the time specified, and the sellers cannot
secure other steam tonnage to load in June, this contract is to be
void."
The words "
ex ship," as used in this contract, were
understood in the trade to mean that the buyer receives the goods
at the tackle of the ship, the seller paying the freight and the
duty, and the buyer paying all charges of landing after the goods
leave the ship's tackle.
The plaintiffs were merchants, and the defendants, as the
plaintiffs knew, were refiners of sugar, and bought this sugar for
use in their regular business.
The sugar was shipped at the Philippine Islands, in bags, in the
amount, quality, and assortment, and within the time, specified in
the contract, on the steamer
Empress of India, which was
then seaworthy and fit in every particular for her voyage, and
which sailed for Philadelphia via the Suez Canal, June 23, 1889.
The usual length of the voyage was three months, unless prolonged
by accident or by perils of the sea.
On August 21, 1889, the
Empress of India, while at
anchor at Port Said, was, without her fault, run into by another
steamer and so much damaged as to be obliged to land her
Page 161 U. S. 59
cargo, and to go to Alexandria to be repaired. After being
repaired and reloading her cargo, she sailed from Port Said,
November 30, 1889, and in crossing the Atlantic met with
extraordinarily rough weather, and was forced to put into Bermuda,
January 5, 1890, and there, upon the recommendation of surveyors,
and in order to enable her to proceed on her voyage with safety,
discharged 700 tons of the sugar.
On February 11, 1890, she arrived at Philadelphia, with the
remaining 1,800 tons of the sugar on board. The 700 tons were
forwarded from Bermuda by another steamer, which arrived at
Philadelphia, March 3, 1890.
The plaintiffs tendered all the sugar to the defendants, and
they refused to receive any of it, upon the sole ground that the
contract required the sugar to be brought to Philadelphia in the
Empress of India, and therefore the plaintiffs had not
performed the contract.
The sugar was sold, by agreement of the parties, and for whom it
might concern, for less than the contract price, and it was
admitted that if the plaintiffs were entitled to recover at all,
the measure of damages was the sum of $63,098, the difference
between the contract price and the proceeds of the sale.
The circuit court instructed the jury that the plaintiffs were
not required by the contract to do more than they had done, and
that the defendants were not warranted in declining to receive the
sugar, and the jury, by direction of the court, returned a verdict
for the plaintiffs for the sum claimed and interest, upon which
judgment was rendered. The defendants excepted to the instruction
and direction of the court, and sued out this writ of error.
Page 161 U. S. 63
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
The single question is whether the contract between the parties
required all the sugar to be brought to Philadelphia in the
Empress of India, upon which it was originally shipped.
This depends upon the meaning of the terms of the writing, in which
the parties must be assumed to have embodied and expressed their
whole intention and to have defined all the conditions of the
contract. The court is not at liberty either to disregard words
used by the parties descriptive of the subject matter or of any
material incident or to insert words which the parties have not
made use of.
Norrington v. Wright, 115 U.
S. 188;
Filley v. Pope, 115 U.
S. 213;
Watts v. Camors, 115 U.
S. 353;
Cleveland Rolling Mill v. Rhodes,
121 U. S. 255;
Seitz v. Brewers' Refrigerating Co., 141 U.
S. 510;
Bowes v. Shand, 2 App.Cas. 455;
Welsh v. Gossler, 89 N.Y. 540;
Cunningham v.
Judson, 100 N.Y. 179;
Iasigi v. Rosenstein, 141 N.Y.
414.
This contract was made in June, 1889, for the sale of sugar,
described as "shipping or to be shipped during this month from the
Philippines to Philadelphia, per steamer
Empress of
India." A contract "to ship by" a certain vessel for a
particular voyage ordinarily means simply "to put on board," not
including the subsequent carriage, and there is nothing in this
contract to show that a different meaning was in the contemplation
of the parties.
Page 161 U. S. 64
The words "
ex ship" are not restricted to any
particular ship, and by the usage of merchants, as shown in this
case, simply denote that the property in the goods shall pass to
the buyer upon their leaving the ship's tackle, and that he shall
be liable for all subsequent charge of landing. They do not
constitute a condition of the contract, but are inserted for the
benefit of the seller.
See Neill v. Whitworth, 18 C.B.
(N.S.) 435, and L.R. 1 C.P. 684.
The clause "Sea damaged, if any, to be taken at a fair
allowance" contemplates the risk of damage to the goods by perils
of the sea, and does not restrict to any particular ship the
subsequent transportation of such goods to their destination.
In the clause, "no arrival, no sale," the word "arrival"
evidently refers, as the word "sale" must necessarily refer, to the
goods which are the subject of the contract, and not to the
particular vessel on which they are shipped, and the whole effect
of the clause is that if the goods never arrive at their
destination, the buyers acquire no property in them and do not
become liable to the sellers for the price.
The remaining clause, which provides that if the
Empress of
India, by unforeseen accident, is unable to load in June, and
the sellers cannot secure another steamer during that month, the
contract is to be void, touches the matter of loading only. The
contract fixes no limitation of time in any other respect.
The contract nowhere requires that the sugar shall arrive at
Philadelphia by the
Empress of India, and essentially
differs in this respect from the cases, cited at the bar, of
contracts for the sale of goods "to arrive" by, or "on the arrival"
of, a ship named, as in
Lovatt v. Hamilton, 5 M. & W.
639;
Johnson v. Macdonald, 9 M. & W. 600, and
Hale
v. Rawson, 4 C.B. (N.S.) 85. A particular ship being
designated as to the putting on board only, and not as to the
arrival, it is not to be inferred that the goods must be carried to
their destination in the same ship.
The sugar in question having been put on board the
Empress
of India, and the conditions of the contract thus satisfied so
far as that ship was concerned, the subsequent transportation and
delivery of the goods were to be governed by the
Page 161 U. S. 65
general rules of the maritime law. By that law, as understood in
England, the master, from the necessity of the case, had the right,
and, by our law, the duty, in case of disaster to his ship, to
transship the goods and send them on by another vessel, if one
could be had.
The Maggie
Hammond, 9 Wall. 435,
76 U. S. 458; 3
Kent Com. 212.
In the able argument for the plaintiffs in error it was admitted
that the rule that the master, in case of necessity, is the agent
of all concerned applied to the seller, who was the owner, and to
the insurer, and to anyone having an insurable interest in the
goods, but it was contended that the plaintiffs in error, before
the arrival of the goods, had no insurable interest therein, and
Stockdale v. Dunlop, 6 M. & W. 224, was relied on as
decisive of this. But that case was decided upon the single ground
that there the contract for the sale of goods was oral, and
therefore incapable of being enforced. It is well settled that any
person has an insurable interest in property by the existence of
which he will gain an advantage or by the destruction of which he
will suffer a loss, whether he has or has not any title in, or lien
upon, or possession of the property itself. In the present case,
the plaintiffs in error, under a valid contract in writing, had an
insurable interest by reason of the title which would accrue to
them upon arrival and delivery and of the injury which they might
suffer by a previous loss of the goods.
Insurance
Co. v. Chase, 5 Wall. 509,
72 U. S. 513;
Filley v. Pope, 115 U. S. 213,
115 U. S. 220;
Wilson v. Jones, L.R. 2 Exch. 131, 151; 3 Kent Com.
276.
Judgment affirmed.
