Eastern Transp. Co. v. Blue Ridge Coal Corp.
| Decision Date | 03 February 1947 |
| Docket Number | No. 152,Docket 20440.,152 |
| Citation | 159 F.2d 642 |
| Parties | EASTERN TRANSP. CO. v. BLUE RIDGE COAL CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Foley & Martin, of New York City, (Chistopher E. Heckman and Louis J. Lawrence, of counsel), for appellant.
Mahar & Mason, of New York City, (Frank C. Mason, of counsel), for appellee.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
By cross libel Eastern Transportation Company sought the recovery of freight payable by Blue Ridge Coal Corporation for the transportation of two cargoes of coal from Hampton Roads to New York.1 Blue Ridge counterclaimed for damages caused by Eastern's breach of contract to furnish barges for other cargoes. The freight claim being conceded, the trial concerned itself only with the counterclaim. The district judge held that Eastern had broken its contract to furnish barges and allowed as damages the difference between the agreed water freight and the actual freight paid by Blue Ridge for two shipments sent by rail from Hampton Roads to New York. This resulted in a small net decree in favor of Eastern.
Upon appeal Eastern now for the first time urges that its contract was void and unenforceable. The agreement was in writing dated April 1, 1941, and signed by the parties by their vice-presidents. It purported, "in consideration of the mutual covenants hereinafter contained," to bind Eastern to "furnish * * * such barges as the Charterer Blue Ridge may require up to a maximum" specified for each month, and to bind Blue Ridge to "ship on the barges furnished as aforesaid, shipments of coal in cargo lots * * *" On its face, the appellant argues, the contract was illusory, because Blue Ridge promised only to ship on such barges as it "may require" and did not promise to "require" any. Indeed, the proof showed that Blue Ridge made an apparently similar contract with another carrier, The P. Dougherty Company, and during several months shipped all its cargoes by Dougherty boats. If "may require" means only "may request," the promise of Blue Ridge was illusory; a promise whose performance depends upon the mere will or inclination of the promisor imposes no obligation upon him and is insufficient consideration to support the promise of the other party to the supposed contract. A.L.I. Contracts, § 79b; North German Lloyd v. Mexican Petroleum Corp., 5 Cir., 24 F.2d 46; Wakem & McLaughlin v. Culver, 6 Cir., 28 F.2d 942. However, it is possible that the...
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