Harrison v. Fortlage,
161 U.S. 57 (1896)

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U.S. Supreme Court

Harrison v. Fortlage, 161 U.S. 57 (1896)

Harrison v. Fortlage

No. 14

Argued November 13, 1894

Decided March 2, 1896

161 U.S. 57


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

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