In re Independent Coal Corporation

• Decision Date: 07 March 1927
• Docket Number: No. 181.,181.
• Citation: 18 F.2d 1
• Parties: In re INDEPENDENT COAL CORPORATION. Appeal of UPDIKE.
• Court: U.S. Court of Appeals — Second Circuit

18 F.2d 1 (1927)

In re INDEPENDENT COAL CORPORATION.^*

Appeal of UPDIKE.

No. 181.

Circuit Court of Appeals, Second Circuit.

March 7, 1927.

Isadore Shapiro, Frank M. Swacker, Ambrose V. McCall, and Leonard Acker, all of New York City, for appellant.

Patterson, Eagle, Greenough & Day, of New York City (Charles D. Francis and Carroll G. Walter, both of New York City, of counsel), for appellee.

Before HOUGH, HAND, and MACK, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

The sale is evidenced by a written contract, in the main a printed form, signed by Empire Company's New York agent (its main office being in Philadelphia) and Independent Company's treasurer. Agreement was that coal should "be delivered f. a. s. (free alongside), t. i. b. (trimmed in buckets), and f. o. b. (free on board) * * * around October 5," 1925, the larger part at Port Reading and the rest at South Amboy. The printed conditions of sale are explicit that "coal delivered on board * * * boats * * * is to be in all respects at purchaser's risk"; that the contract price might be changed by variations in wage and railroad freight conditions; that seller could suspend shipments, should the financial responsibility of the buyer become "unsatisfactory," and that "terms of payment" should be "of the essence of the contract," but nowhere in any writing, nor by any oral testimony, is there any statement of what the terms of payment were to be.

As stated already, petitioner (the seller) pleaded that terms were to be "cash on delivery"; but the record leaves that allegation with no support but the general and undoubted rule of law that, in the absence of any agreement express or implied on the subject, payment is to be contemporaneous with delivery.

Delivery in this case was admittedly on board boats chartered by buyer, at coal-loading ports where neither buyer nor seller had representatives, and, so far from payment at any such times or places being agreed upon or intended, we find and hold that the evidence plainly shows a uniform custom or usage in the New York coal trade that sales such as this contemplated payment in 30 days from delivery, with a discount usually allowed for payment before that date. This finding does not add to or vary the written contract, because the writing is silent. Therefore the sale was not for cash, but on credit, and title to the coal passed when and as it was loaded into the bankrupt's chartered boats.

It follows that bankrupt had good right to sell and pass title to the agents or owners of the steamship Edison, and did so. It is such a contract, and not the cash sale pleaded, that the seller petitioner wishes to rescind.

The material facts between sale and attempted rescission are (despite a bulky record) very few. When contract made on September 30th, and thereafter until the coal was delivered on October 8th, there is no evidence of any representations made by buyer nor information asked by seller. On October 8th an officer of seller in Philadelphia asked buyer by telephone for "a definite financial statement of the" Independent...