Lagerloef Trading Co., Inc. v. American Paper Products Co. of Indiana

• Decision Date: 02 May 1923
• Docket Number: 3183.
• Citation: 291 F. 947
• Parties: LAGERLOEF TRADING CO., Inc., v. AMERICAN PAPER PRODUCTS CO. OF INDIANA. [d]
• Court: U.S. Court of Appeals — Seventh Circuit

291 F. 947

LAGERLOEF TRADING CO., Inc., v. AMERICAN PAPER PRODUCTS CO. OF INDIANA. ^[d]

No. 3183.

United States Court of Appeals, Seventh Circuit.

May 2, 1923

Rehearing Denied July 9, 1923.

Herbert R. Limburg. of New York City (Charles Remster, H. H Hornbrook, Albert P. Smith, Paul Y. Davis, and Kurt F Pantzer, all of Indianapolis, Ind., on the brief), for plaintiff in error.

Moses B. Lairy, of Indianapolis, Ind., for defendant in error.

Finnish Cellulose Association was a manufacturer of pulp in Finland. Lagerloef Trading Company was an importer at New York, and was the agent of the Finnish Association in selling pulp in this country. These parties will be called 'seller.'

Carthage Board & Paper Company was a manufacturer of paper in Indiana. American Paper Products Company of Indiana was Carthage Company's successor in interest. These parties will be called 'buyer.'

Seller sued buyer on breach of contract. Jury was waived, and the trial court made a finding of facts, on which it based a conclusion of law and a judgment that seller take nothing.

The finding of facts is as follows:

'Hans Lagerloef, President and Treasurer.

'Orvar Hylin, Vice President.

'Lagerloef Trading Company, Inc.,

'18 East 41st Street.

'Order 9064.

Telephones:

'Murray Hill 4246-4247

'New York, August 25, 1920.

'Contract No. 491. 1920.

'Time and mode of shipment: To be shipped at the rate of one hundred (100) tons per month December, January, and February from abroad.

'Price: Seven dollars ($7.00) per hundred pounds air-dry weight ex dock American Atlantic Seaboard.

'Terms of payment: Net cash thirty days from date of inland B/L. All remittances payable in New York City funds.

'Remarks: Subject to the conditions printed on the back hereof.

'New York, N.Y., August 25, 1920.

'Lagerloef Trading Company, Inc.,

'(Signed) O. Hylin, V. Pres.

'Accepted:

Carthage Board & Paper Co.,

'(Signed) H. C. Baseler, General Manager.

'Conditions.

'(1) Weight: In all instances where the word 'tons' occurs in this contract, it is understood to refer to a ton of 2,240 pounds air-dry weight.

'(2) Moisture: All pulp to be billed on air-dry weight, and the term 'air-dry' shall mean 90 per cent. absolutely dry pulp and 10 per cent. of atmospheric moisture.

'(3) Tests: In case buyer's weight and test differs from invoice and is not acceptable to buyer, pulp is to be held and seller notified by telegram of the result claimed. Upon request, the seller will make joint test with buyer, There shall be no claim where a difference from original billing does not exceed 1 per cent. With regard to settlement, it is based on result so obtained. The cost of investigation is to follow results and be paid by the party in error. In all claims for damaged pulp, purchaser hereby agrees to hold railroad carrier responsible, unless it is proven that said pulp was defective when delivered to said carrier by the seller.

'Each party to appoint an arbitrator, who shall be well acquainted with the pulp business, and they to appoint their umpire before proceeding with the hearing. If either party fails to appoint their arbitrator within 10 days of notice in writing requiring him to do so, the arbitrator appointed by the other party shall without umpire act for both; his decision to be binding upon both parties, as if he had been appointed by consent. It shall be left to the arbitrators, in case they agree that the pulp is not within reasonable limits of the quality sold, to decide whether or not the pulp shall be rejected or taken with an adequate allowance.

'Furthermore, it shall be left to the arbitrators to agree upon the place of arbitration.

'(5) Shipment: Each shipment under this contract is to be considered a separate contract, and default on one or more shipments not to invalidate the rest of the contract.

'(6) Tariff: This contract is based upon the tariff law existing at the time of signing same, and in case of any change the buyer to have the benefit of any reduction made or to pay any duties imposed or any increase.

'(7) Force majeure: The buyers or sellers may suspend deliveries under this contract pending any contingency beyond their control, which prevents or hinders the manufacture of paper or the manufacture or delivery of pulp, viz.: The act of God, war, strikes, lockouts, drought, flood, accidents, total or partial fire obstruction or navigation by ice at port of shipment and loss and detention at sea or the like. The party affected shall give prompt notice to the other party of the cause and commencement of such suspension in writing or by wire, and also of when it ceases to have effect, and deliveries shall be resumed pro rata according to the production of the sellers or the consumption of the buyers. When such suspension shall have continued for one calendar month, the delivery for that period shall be canceled, unless otherwise agreed. For each succeeding period of one month, the same course shall be taken. In the case of single cargoes or deliveries at longer intervals than one month, one-twelfth of a year's deliveries shall be canceled for each month's suspension. Shipments in transit must, however, under all circumstances, be accepted by the buyer.

'(8) Claims: All claims of whatever nature must be made to the seller in writing or by wire inside 15 days after receipt of the pulp at seaside or at buyer's station or mill; otherwise, the seller shall not be liable.

'(9) This agreement shall extend to and be obligatory upon the heirs, executors, administrators, successors, and assigns of the respective parties hereto.

'(10) Breach of contract: Should the buyers without legal reason omit to take delivery or pay for pulp at stipulated time, the sellers may at their option withhold or refuse to make further deliveries.'

Which contract is set out in paragraph 1 of plaintiff's complaint, and that as of the same date, the same parties entered into a written contract, known to the plaintiff as contract 490, which said written contract is set out in the second paragraph of complaint, and is in the words and figures following, to wit:

'Hans Lagerloef, President and Treasurer.

'Orvar Hylin, Vice President.

'Lagerloef Trading Company, Inc.,

'18 East 41st Street.

'Order 9063.

Telephone:

'Murray Hill 4246-4247.

'New York, August 25, 1920.

'Time and mode of shipment: To be shipped at the rate of two hundred (200) tons per month December, January, and February from abroad.

'Price: Seven dollars and fifty cents ($7.50) per hundred pounds air-dry weight ex dock American Atlantic Seaboard.

'Terms of payment: Net cash thirty days from date of inland B/L. All remittances payable in New York City funds.

'Remarks: Subject to the conditions printed on the back hereof.

'New York, N.Y., August 23, 1920.

'Lagerloef Trading Company, Inc.,

'(Signed) O. Hylin, V. Pres.

'Accepted:

Carthage Board & Paper Co.,

'(Signed) H. C. Baseler, General Manager.'

The remainder of the contract is the same as the conditions to contract 491 heretofore set out.

At the time of giving said notices, as shown in finding No. IV, there was in the steamer Osage, then on the water, ninety-three (93) long tons of No. 1624 Gutseit K prime strong unbleached sulphate pulp which had been shipped from abroad in December, 1920, to apply on contract 491, and which arrived at the Atlantic seaboard and was placed on the dock, at Philadelphia, on January 6, 1921, and which was shipped to the River Raisin Paper Company on January 7, 8, and 11, 1921. The 93 tons of Gutseit pulp, mentioned, was not on any dock on the Atlantic seaboard of the United States at the time said notice was given, and after the arrival of said pulp, on the dock at Philadelphia, no further notice was given of such arrival, or of the particular dock, and the Atlantic seaboard, where it had been placed.

The defendant gave no shipping order for the pulp mentioned, and declined to receive the same under the contracts. The only reasons for declining to perform said contracts, theretofore given by defendant, were that it was not bound to receive any pulp thereunder, and at no time did the defendant place its refusal to receive pulp on the ground that the pulp had not been shipped at the proper time or was insufficient in quantity.

Neither the plaintiff nor the Finnish Cellulose Association, at the time of giving the notice contained in said letter or at any other time, in the month of January or February, had on dock, at Philadelphia, 200 tons of No. 1670 KssF prime strong Kraft pulp, which had been shipped from abroad, either in the month of December or the month of January.

The vessel referred to in the notice, contained in said letter, as being on the water and as containing 100 tons of No. 1624 Gutseit K prime strong unbleached sulphate was the steamer Eastport, which docked at Philadelphia on the 10th day of March, 1921; that the pulp carried by said steamer Eastport was not on the dock at Philadelphia, or on any other dock on the Atlantic seaboard at the United States, prior to March 10, 1921.

Four and 50/100 dollars per hundred pounds for December shipments.

Four and 25/100 dollars per hundred pounds for January shipments.

Four dollars per hundred pounds for February shipments.

The market value ex dock Atlantic seaboard, of the kind of pulp described in said contract 491, at the times when shipments thereof from abroad, made in December, 1920, January, 1921, and February, 1921, would in the ordinary course of business, have arrived on dock on the Atlantic seaboard, was respectively:

Four and 25/100 dollars per hundred pounds for December shipments.

Four and 25/100 dollars per hundred pounds for January shipments.

Four...