Davis v. Columbia Coal-Min Co.

• Decision Date: 28 February 1898
• Citation: 170 Mass. 391,49 N.E. 629
• Parties: DAVIS et al. v. COLUMBIA COAL-MIN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 391

49 N.E. 629

DAVIS et al.

v.COLUMBIA COAL-MIN CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1898.

Exceptions from superior court, Suffolk county; John H. Hardy, Judge.

Action by one Davis and others against the Columbia Coal-Mining Company, under a contract, to recover damages for nondelivery of 600 tons of coal. Verdict for plaintiffs and defendant excepts. Exceptions sustained.

J. Albert Brackett, for plaintiffs.

Ben L.M. Tower and Ernst O. Hiller, for defendant.

LATHROP, J.

The contract upon which this action is brought is not an absolute contract, by which the defendant agreed to deliver the coal free on board at Greenwich, Philadelphia, at a particular time, but, as the judge who tried the case in the court below has found, is subject to certain conditions, namely, that the defendant was not to be responsible for loss of coal “en route,” nor for damages from delays in transportation, strikes, or causes beyond the defendant's control. The evidence shows that the coal had not reached Greenwich, but was “en route,” on the road of the Pennsylvania Railroad Company, when that company seized it, and consumed it, there being at the time a great scarcity of coal, caused by a serious strike at the mines. The coal was thus lost to the defendant, by a cause for which, by the terms of the agreement, the defendant was not to be responsible. While the defendant afterwards was paid by the Pennsylvania Railroad Company for the coal the same price which the plaintiffs had agreed to pay for it, we do not see that this has any bearing upon the case. Nor do we see that the defendant was under any obligation to furnish another cargo of coal, under the contract. Where a contract is made by which the seller of goods agrees to deliver them free on board at a certain place, it is ordinarily the duty of the buyer to furnish a vessel, and the seller is under no obligation to act if the buyer does not procure the vessel. Armitage v. Insole, 14 Q.B. 728; Sutherland v. Alhusen, 14 Law T.(N.S.) 666; Dwight v. Eckert, 117 Pa.St. 490, 12 Atl. 32;Hocking v. Hamilton, 158 Pa.St. 107, 27 Atl. 836. In the present case it was no part of the contract of the defendant to furnish a vessel, although, acting for the plaintiffs, it attempted to procure one at the rate of freight to which it was limited by the plaintiffs, but did not succeed. On May 7th, three weeks after the order was given, the freight limit was raised by the plaintiffs, and...