Miss. & Dominion S.S. Co., Ltd., v. Swift

• Decision Date: 24 February 1894
• Citation: 29 A. 1063,86 Me. 248
• Parties: MISSISSIPPI & DOMINION STEAMSHIP CO., Limited, v. SWIFT et al.
• Court: Maine Supreme Court

29 A. 1063

86 Me. 248

MISSISSIPPI & DOMINION STEAMSHIP CO., Limited,

v. SWIFT et al.

Supreme Judicial Court of Maine.

Feb. 24, 1894.

Report from supreme judicial court, Cumberland county.

Action by the Mississippi & Dominion Steamship Company, Limited, against Gustavus F. Swift and others. On report Judgment for defendants.

This was an action for the recovery of $24,690.08 damages for breach of a contract claimed by the plaintiff to have been made with the defendants, by which it chartered to the defendants certain space, at a price designated, on the three steamers, Vancouver, Sarnia, and Oregon, owned by the plaintiff company, which space was to be fitted with refrigerators, and used by the defendants for the shipping of dressed meat.

The principal part of the evidence consists of letters and telegrams between David Torrance & Co., steamboat agents of the plaintiff company, who had an office both in Montreal and Portland, and these defendants, represented by Mr. Edwin C. Swift, at Boston. The correspondence, beginning November 19, 1889, and continuing until the latter part of 1890, is stated in the opinion of the court.

The plaintiff claimed that the minds of the parties were together, and that the contract was complete April 5, 1890. Plea, general issue, and the statute of frauds. The defendants denied that any contract was made or signed.

Symonds, Snow & Cook, for plaintiff. Savage & Oakes, Freedom Hutchinson, and Clarence Hale, for defendants.

EMERY, J. A full exposition of our judgment in this case requires an extended statement of the evidence and the authorities, notwithstanding constant effort at abridgment.

The plaintiff steamship company owned and operated a line of ocean steamships plying between Liverpool and Montreal in the summer, and between Liverpool and Portland in the winter. The American agents of the company were David Torrance & Co., with offices in Montreal and in Portland. Three of the steamships were named, respectively, Sarnia, Oregon, and Vancouver.

The defendants, Swift & Co., located at Boston, were large shippers of dressed meats from the United States to Europe. This kind of merchandise, being fresh meat, could not be shipped, stowed, and transported across the ocean like ordinary merchandise, upon mere bill of lading. Its suitable transportation required that certain spaces in the steamship should be set apart for its reception, refrigeration, and care during the voyage. This space was necessarily engaged for some time prior to the shipping, that it might be properly fitted up; and it was necessarily to some extent, at the disposal of the shipper, and under his control, during the term of the contract. There were two modes of refrigeration in use,—one by ice, and a new one by the Kilbourn process, so called.

In this condition of affairs, Torrance & Co., November 19, 1889, opened a correspondence with Swift & Co. relative to space on the company's steamers for the transportation of dressed beef. In the first letter, November 19th, Torrance & Co. advised Swift & Co. that they were prepared to negotiate for such space on the Sarnia and Oregon, and were prepared to offer such space at 20 shillings per 40 cubic feet on those steamers, retaining liberty to substitute the Vancouver for one of the others later on. There was no reply to this letter, and on January 19, 1890, Torrance & Co. again wrote Swift & Co., naming the sailing dates of the various steamers, and inviting bids. No reply being received, Torrance & Co., on February 6th, again invited the attention of Swift & Co. to the matter. Swift & Co., February 12th, wrote Torrance & Co. that one of their men would call upon them with reference to the matter. There seems then to have been some verbal conference, for, on March 3d, Torrance & Co. wrote that, the Liverpool managers were not inclined to accept the price named by Swift & Co., and "would only agree to fix the ships provided you are willing to pay twenty shillings, and take the space where we think it would be most profitable for the ship," and suggested that if Swift & Co. were inclined to do anything on these terms, they might communicate with either the Montreal or Portland house. March 24th, Torrance & Co. again wrote (this time from Portland, the other letters having been from Montreal) that they would not be prepared to enter into a contract for the Vancouver, Sarnia, and Oregon unless for one year, from Montreal in summer, and Portland in winter, they reserving the right to withdraw the Vancouver in the winter.

The next day, March 25th, Swift & Co. wired in answer as follows: "Answering your letter, 24th, if accepted at once, we will take space in the three ships named, to be mutually agreed on at twenty shillings flat for summer navigation; we agreeing to continue shipments during the winter, if ships go from Portland or Boston, we paying your market price for beef space. As we are negotiating with other parties, would appreciate your answer at once." Torrance & Co. wired same day from Montreal as follows: "We cannot change offer already made by our Portland house under instructions from Liverpool." Their Portland bouse, on the next day, March 26th, wrote for an answer to their proposition. On March 27th, Swift & Co. wired to the Portland house as follows: "Your favor of 26th just received. We accept your proposition of 24th on three steamers. Please confirm by wire."

In the meantime, between the 24th and 27th of March, Torrance & Co., not hearing from Swift & Co., began negotiations with other parties, and so informed Swift & Co. in answer to their telegram of the 27th. March 29th, Swift & Co. wired that they wanted the space, and thought it should be accorded to them. April 1st, Torrance & Co. wired as follows: "The decision has been given in your favor, and the three ships mentioned are at your disposal. Sarnia expected Portland Thursday. Will sail following Thursday." On the same day Torrance & Co. wrote that they had been relieved of their negotiations, and said, "We hasten to advise you that we are willing to contract with you for the three steamers on the terms already mentioned, and conditional on your putting in the cold air blast instead of the ice, and we have wired you accordingly in these words: 'The decision has been given in your favor and the three ships mentioned are at your disposal. Sarnia expected Portland Thursday, and will sail the following Thursday.' You can arrange with our Portland house in reference to the contract. * * *" To this telegram, Swift & Co. wired answer as follows: "Your message received. Thanks for same. Shall we refrigerate Sarnia by old process this trip, or wait till first of May, and use Kilbourn machine? We have two machines to be delivered early in May." Torrance & Co. replied by wire same day, April 1st, as follows: "Wait till May. We don't want old process." On April 5th, Swift & Co. wrote as follows: "Your favor of April 1st received. Replying to same, will say we will arrange for fitting the three ships by the Kibourn process, as per your request I notice you say: 'The Toronto, one of our steamers sailing between here and Liverpool all next season, is due at Portland on the 10th instant and should sail about the 15th. We are open to negotiation for her, if you are so inclined.' I suppose 'all next season' means the coming summer navigation for Montreal. Will you kindly write us, saying where this ship will sail from during next winter. If sheis to be in the regular service, we shall be pleased to negotiate with you."

Here the correspondence ceased for a time. In the meantime, about the last of March, Mr. Foster, agent of Swift & Co., visited the steamers in Portland, took measurements of space in different steerages, and had some conversation with the company's marine superintendent about the location of spaces for refrigerators. He indicated what spaces he should want, but no express stipulation was made that he should have them, or would take them. Swift & Co. did nothing toward refrigerating any space, and the steamers carried cargo in all the steerages as usual, leaving no space unoccupied.

July 8, 1890, Swift & Co. wired as follows: "Have no copy of contract Please mail one to-day." On the same day, Torrance & Co. replied as follows: "We must apologize for not having earlier sent you copy of the contract for dead-meat space. We shall, however, mail it to you to-morrow without fail." The next day, July 9th, they further wrote as follows: "Owing to this being our English mail day, we have been unable to put your contract in form, as promised, but we will send it to you to-morrow." July 10th, they wrote again as follows: "We now inclose you copy of our proposed contract, which we trust may be found to be in accordance with the understanding arrived at last March. We must apologize for not sending this yesterday, but, as it was our mail day, we were more than busy, and this must be our excuse. We trust you may soon be prepared to begin your shipments." The draft of contracts inclosed was quite long. The only date on the draft was, "Montreal, 1890." This draft was never signed.

July 24th, Swift & Co. Wired that they could not use Kilbourn process, and must use ice, and inquired if that would be satisfactory. July 20th, Torrance & Co. replied by wire as follows: "Have cable authorizing you using ice, but the other preferred. Can you refrigerate Vancouver? Will be here to-morrow. Sails Wednesday week."

Swift & Co. replied on July 28th that they could not refrigerate the Vancouver, and that their Mr. Foster would call on Torrance & Co. Wednesday morning. At this point the draft of contract had not been signed. Swift & Co. had taken no spaces, and had made no shipments. The company had set apart no spaces, but had filled them, as usual, with cargo.

This state of affairs continued till September 24, 1890, when Torrance & Co. wrote to persuade Swift & Co. to hasten matters. Swift & Co. replied, ...