Herrmann v. Bower Chemical Mfg. Co.

• Decision Date: 17 May 1917
• Docket Number: 2213.
• Citation: 242 F. 59
• Parties: HERRMANN v. BOWER CHEMICAL MFG. CO.
• Court: U.S. Court of Appeals — Third Circuit

242 F. 59

HERRMANN v. BOWER CHEMICAL MFG. CO.

No. 2213.

United States Court of Appeals, Third Circuit.

May 17, 1917

Louis Marshall, of New York City, John G. Johnson, of Philadelphia Pa., and Abraham Benedict, of New York City, for plaintiff in error.

James Piper, of Baltimore, Md., George Wharton Pepper, of Philadelphia, Pa., and Francis J. Carey, of Baltimore, Md for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below, Morris Herrmann, surviving partner of Herrmann &amp Co., a citizen of New York, brought suit against the Henry Bower Chemical Manufacturing Company, a corporate citizen of Pennsylvania, to recover damages for breach of contract. The trial resulted in a verdict for defendant. On entry of judgment on such verdict, plaintiff took this writ of error.

The proofs in this case tended to show that by written bill of sale, dated June 10, 1914, the defendant sold plaintiff 400,000 pounds of 'prime yellow prussiate of potash (standard technical quality), ' with an option for an additional 100,000 pounds, declarable April 1, 1915. The deliveries were to be 'in equal monthly installments over the year 1915. ' The bill of sale further provided:

'Seller not liable for delays due to causes beyond their control, or for nonarrival of any shipment lost in transit, or for causes, such as strikes, lockouts, war and insurrection, fires, accidents, or the like, which may prevent or impede the manufacture or delivery of the merchandise herein contracted. In such event, shipments or deliveries may be suspended during the period required to remove the cause of or to repair the damage, or until there is a normal production again.'

The proofs showed the seller made at its works in Philadelphia prussiate of potash, and that its principal ingredient was carbonate of potash, which is practically an exclusive European product, and almost exclusively one of German make and export. For that reason the fulfillment of the contract was largely affected by the European war, and defendant, as a result, did not make the deliveries provided by the contract. At the trial the court refused plaintiff's point that:

'The provision in the contract to the effect that the 'seller is not liable for causes, such as * * * war, * * * which may prevent or impede the manufacture or delivery of the merchandise herein contracted,' relates solely to a war in the United States, or in which the United States is engaged or directly concerned, and not to a war in which the United States is not thus engaged or concerned, between two or more other countries, from one of which is obtained a supply of materials needed in the manufacture of the merchandise sold.'

We find no error in the refusal of the court to give this binding instruction as to the construction to be placed on contract. Assuming for present purposes, but without deciding, that the contract was for the sale of a specific article which was manufactured here in America, and that the strikes, lockouts wars, fires, accidents, and the like, guarded against in the contract, were such as were incident to the manufacture of the article in America, and not to the ingredients, obtained elsewhere, from which such article was manufactured, we think that, in view of the construction given by the acts of...