Habeler v. Rogers

• Decision Date: 02 June 1904
• Docket Number: 205.
• Citation: 131 F. 43
• Parties: HABELER et al. v. ROGERS et al.
• Court: U.S. Court of Appeals — Second Circuit

131 F. 43

HABELER et al. v. ROGERS et al.

No. 205.

United States Court of Appeals, Second Circuit.

June 2, 1904

R. B Honeyman, for plaintiffs in error.

H. A Forster, for defendants in error.

Before WALLACE, LACOMBE, and Townsend, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the defendants in the court below to review a judgment for the plaintiffs entered upon a verdict of a jury.

The action was brought to recover damages for the breach by the defendants of a contract with the plaintiffs made August 9 1899, whereby the defendants agreed to buy 5,000 tons of phosphate rock of the plaintiffs at the price of $4 per ton 'delivery to be completed when loaded on cars at Mt. Pleasant, Tennessee, and sampling to be done at time of loading. ' By the terms of the contract, the rock was to be shipped to the defendants at any time between February 1 and June 1, 1900, at buyers' option, 'but seller to have at least fifteen days' notice before goods are required, and goods to be loaded at the rate of 200 tons for each working day, not more than 2,500 tons in one month. ' It was proved upon the trial that the plaintiffs were the selling agents of an association of phosphate rock miners in Tennessee, and the exclusive selling agents of another mining concern there, and had a contract with each to deliver as much as 2,500 tons of rock per month in April and May, 1900, such as was called for by the contract with the defendants, and that each had the requisite quantity of rock on hand to supply the contract. It was also proved that on April 19th the defendants wrote the plaintiffs as follows:

'We have delayed answering your letters with reference to the 5,000 tons phosphate rock, hoping that we might be able to give shipping directions. * * * The war in South Africa has caused an absolute dearth of vessels and it is impossible for us to get anything to enable us to carry out the contract. * * * We can only say that we are forced to accept your proposition to hold us liable for your loss, if any, and we hope you will make your loss as little as possible.'

April 30th the plaintiffs wrote the defendants, inclosing an invoice for 2,500 tons of rock, and stating:

'Goods not moved according to contract, therefore at your risk, and any and all expenses and losses for your account, storage charges for your account.' On May 7th the defendants again notified the plaintiffs as follows:

'Replying to your favor of the 4th inst., we beg to say that we intended by our letter of the 10th ult. to notify you of the fact that we were not going to take the phosphate called for by the contract, and our subsequent letters are quite sufficiently positive upon that point we think. We will of course be glad to meet you with a view of adjusting any losses.'

May 11th the plaintiffs wrote to the defendants as follows:

'In view of your positive notice that you will not accept delivery, we notify you herewith of our intention to sell the phosphate on your account for the best price obtainable in open market, and will look to you for any loss which we may sustain.'

May 14th, answering this letter, the defendants wrote to plaintiffs:

'We must request you not to sell any phosphate rock on our account.'

Evidence was given upon the trial tending to show that the market price for phosphate rock of the contract kind in Tennessee during the months of April and May was as low as $2.50 per ton, that there was little or no sale for it during those months, and that the price declined from about $4 per ton in 1899 to $2.75 in the spring of 1900. The jury found a verdict for the plaintiff for $3,750.

The principal question raised by the assignments of error is whether the trial judge was correct in refusing to direct a verdict for the defendants. The defendants requested such a direction upon the ground that the plaintiffs had not shown that they were ready, able, and willing to deliver the phosphate, and it was obligatory upon them to show...