A. Klipstein & Co. v. Dilsizian
| Decision Date | 11 May 1921 |
| Docket Number | 209. |
| Citation | 273 F. 473 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | A. KLIPSTEIN & CO. v. DILSIZIAN et al. |
John J Schwartz, of New York City (I. Maurice Wormser and David Burr Luckey, both of New York City, of counsel), for plaintiffs in error.
Harrington Bigham & Englar, of New York City (Lawrence A. Sullivan, of New York City, of counsel), for defendants in error.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
The plaintiffs below brought this action against the defendant below to recover damages for breach of contract, because the defendant below refused to accept a tender made on May 20 1919, of 50 tons of gum arabic. This purchase was made pursuant to the terms of a contract between the parties dated April 23, 1918. The contract provided for the sale of 50 long tons of gum arabic, 1918 crop, freight average at 25 cents per pound net, c.i.f. New York. Payment was to be made by letter of credit at a bank in New York on which the seller was at liberty to draw a sight draft with invoice, bill of lading, and insurance certificates attached. Under the clause 'Shipment' it provided, 'From Red Sea to New York on vessel Phyllis, which is now on her way to Red Sea,' and under the term 'Remarks,' 'Sellers not responsible if shipment of merchandise or sailing of vessel prevented by any government regulations in country of export or destination, by act of God, perils of the sea, or by any other circumstances beyond the seller's control.'
The complaint sets forth the terms of the contract, a copy of which is annexed and made a part of the pleading. It pleads the arrival of the Phyllis with the merchandise in question as contracted for, and its tender to the defendant below, and its refusal to accept or pay for the goods, either by letter of credit, as provided for, or otherwise. It alleged a repudiation of the contract, canceling and withdrawing its letter of credit prior to the arrival of the Phyllis, and the tender of the goods, and that on the 20th of June, 1919, the defendant below, being then for a reasonable length of time in default of payment, the plaintiffs below elected to and did rescind, and notified the defendant below that they would hold it liable for the difference on the sale between the contract and market price of the goods, which was then 13 1/2 cents per pound; that the storage charge of $85 was incurred; that the plaintiffs below have duly performed all their contractual obligations; and damages were demanded in the sum of $12,965.
The answer denied the allegations of breach of contract. It asked for a reformation of the contract. It alleged that an express condition of the contract was that the gum arabic should arrive in New York in November, 1918, and that no letter of credit should be furnished until the buyer was notified that the import license had been obtained by the seller; that shipment was not confined to the Phyllis, then on her way to the Red Sea, but was permissible by other vessel; but it was required, however, to arrive in New York, to be there delivered to the defendant below at the latest in November, 1918. A counterclaim was pleaded.
On the trial, the counterclaim and the several defenses were abandoned, except the defense was insisted upon that an unreasonable length of time had expired before delivery, and it was urged that the contract had been breached by the plaintiffs below by failure to present the documents 'within the time duly provided for in said agreement. ' Also it was contended that, by custom and usage in the purchase and sale of goods shipped by c.i.f. contract, the seller was required to promptly notify the buyer of the delivery to the carrier of the quantity shipped, date of bill of lading, and other information of shipment, and that the failure so to do, together with the failure to send on the documents in advance of the delivery in New York of the merchandise, constituted a breach of the contract. We think the complaint sufficiently alleges a cause of action for the buyer's failure to take delivery; its failure having been followed by a rescission of the contract.
It is contended on behalf of the defendant below, that this was a c.i.f. contract, and required the seller to make delivery of the gum arabic by promptly presenting and delivering the bill of lading, invoice of gum put on board, and insurance certificate, and provided for payment only by the seller's promptly presenting and delivering to the bank a sight draft for the amount of gum put on board at the contract price shown by the bill of lading, seller's invoice and insurance certificate attached.
The c.i.f. contract is an expression which indicates that the price fixed covers the cost of the goods and insurance and freight on them to the place of destination. Under such a contract, the seller must ship the goods, arrange the contract of affreightment to the place of destination, pay its cost and allow it from the purchase price, and procure insurance for the buyer's benefit for the safe arrival of the goods and pay therefor. When the seller has done this, and forwarded the papers to the buyer, he has fulfilled his contract, and delivery is complete. There is no obligation by the seller to deliver the goods at the place of destination. But the liability of the parties here must be controlled by the terms of the contract into which they entered. It is a New York contract. Under the heading of 'Weights' is the following: 'New York official landed weights'-- and it is further provided under 'Remarks,' 'The price is fixed at 25 cents per pound net c.i.f. New York.'
The entire contract contemplates a delivery of the gum arabic on the vessel Phyllis in a port of the United States. Delivery and...
To continue reading
Request your trial
-
Badhwar v. Colorado Fuel and Iron Corporation
...17 N.E. 424; Smith Co., Ltd., v. Marano, 267 Pa. 107, 110 A. 94, 10 A.L.R. 697; Ireland v. Livingston, L.R. 5 H.L. 395; Klipstein & Co. v. Dilsizian, 2 Cir., 273 F. 473; 2 Williston on Sales, §§ 407, 408; Mechem on Sales, vol. 2, § 1736." See also, Smith Co., Limited v. Moscahlades, 1st Dep......
-
Pan-American Bank & Trust Co. v. National City Bank
...f. transaction. Our views as to these rules and the meaning of "c. i. f." have been stated in the case last cited, and in Klipstein v. Dilsizian (C. C. A.) 273 F. 473, Harper v. Hochstim (C. C. A.) 278 F. 102, 20 A. L. R. 1232, American, etc., Co. v. Irving, etc., Bank (C. C. A.) 266 F. 41,......
-
Nat'l Wholesale Grocery Co. v. Mann
...at port of discharge of cargo. The defendant's requests for rulings, numbered 3 to 8, inclusive, were denied rightly. Klipstein v. Dilsizian (C. C. A.) 273 F. 473, 475, writ of certiorari denied 257 U. S. 639, 42 S. Ct. 51, 69 L. Ed. 410; Willits & Patterson v. Abekobei, 197 App. Div. 528, ......
-
DIXON IRMAOS & CIA. LTDA. v. Chase Nat. Bank
...S., 237 U.S. 19, 35 S.Ct. 496, 59 L.Ed. 821, Ann.Cas.1915D, 1087; Warner Bros. & Co. v. Israel, 2 Cir., 101 F.2d 59; A. Klipstein & Co. v. Dilsizian, 2 Cir., 273 F. 473. The defendant however urges that the New York Court of Appeals has held otherwise in Cundill v. Millhauser Corp., 257 N.Y......