Cunningham Iron Co. v. Warren Mfg. Co.

• Decision Date: 08 May 1897
• Docket Number: 2,548.
• Citation: 80 F. 878
• Court: U.S. District Court — District of Rhode Island
• Parties: CUNNINGHAM IRON CO. v. WARREN MANUF'G CO.

80 F. 878

CUNNINGHAM IRON CO. v. WARREN MANUF'G CO.

No. 2,548.

United States Circuit Court, D. Rhode Island.

May 8, 1897

J. C Pegram, for plaintiff.

B. M Bosworth, for defendant.

BROWN District Judge.

This is an action on the case for breach of contract relating to the sale and delivery of certain second-hand boilers contained at the time of contract in the defendant's factory, and by the terms of the contract to be taken out and delivered in defendant's yard before November 1, 1895. The case was heard upon oral testimony, a jury trial being waived. From the fact that the boilers were in use and bricked in at the defendant's factory, to be taken out by the defendant at such time prior to November 1, 1895, as the defendant chose I am of the opinion that the contract was an executory contract, which did not pass title to the plaintiff, since something was to be done to make delivery possible, and to be done by November 1st, which made time essential, and gave a right to the plaintiff to rescind for failure to perform the agreement within the stipulated time. The fact that the memorandum of sale states, 'Cunningham Iron Co. purchased * * * the thirteen 72 inch boilers,' etc., does not, in my opinion, render the transfer of title complete, in view of the foregoing facts. Hatch v. Oil Co., 100 U.S. 124; Jones v. U.S., 96 U.S. 24, 28. On October 3, 1895 defendant's factory was destroyed by fire. There remained eight boilers to be delivered. These boilers were not damaged, except by loss of doors, flue doors, water gauges and other appliances. After the fire the plaintiff wrote, requesting the delivery of the remaining boilers. On October 26th the defendant wrote, 'The remaining boilers having been through the fire, we cannot deliver the same as if they had not been through the fire, and we do not think you can expect it,' and offering to cancel the agreement as to the rest of the boilers, and afterwards wrote inquiring whether the plaintiff would take the boilers in their then condition at the original price. The plaintiff replied, insisting upon performance of the original contract, saying, 'We see no occasion to make any additional contract, or change the provisions of the old one,' and subsequently, without waiving its rights, offered, by way of compromise, to take the boilers at the original price, 'less the amount of actual damage done, to be ascertained by inspection. ' On November 23d the defendant wrote, 'I understood that legally the fire canceled the contract or agreement had between us,' but again offering the boiler at the original price. The proposal not having been accepted, and the plaintiff still insisting on its original rights, the defendant, after notice of its intention to do so, sold the boilers on January 31, 1896, to George B. Doane for $230 per boiler. On the same day Doane billed the same to Cunningham, the plaintiff's agent and largest stockholder, and on the following day was paid $1,900 for the same by Cunningham's individual check. Some time afterwards the boilers were removed to the yard of the Cunningham Manufacturing Company,...