Savannah River Sales Co. v. McFarland
| Decision Date | 31 May 1917 |
| Docket Number | 4030. |
| Citation | 242 F. 587 |
| Parties | SAVANNAH RIVER SALES CO. v. McFARLAND. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
C Alison Scully and Owen J. Roberts, both of Philadelphia, Pa for plaintiff.
J. Q Hunsicker, Jr., of Philadelphia, Pa., for defendant.
The trial of this case resulted in a directed verdict in favor of the plaintiff. This direction, or more accurately speaking the rulings which preceded it, might well be deemed by the plaintiff to have involved an arbitrary denial of its at least technical rights. This phase of the case, however, affords the defendant no just cause of complaint. It follows that the present motion might be disposed of by dismissing it without further comment. The earnestness with which the motion has been pressed by counsel calls for a statement of the reasons which lead us to the conclusion reached. Before taking up the reasons for a new trial in the order given, an outline statement of the main features of the case of the plaintiff and of the defense may be of aid in reaching the precise appellate questions with which we are concerned. The contract which provoked this litigation was, in substance, one by which the plaintiff agreed to sell and deliver, and the defendant agreed to accept and pay for, a quantity of lumber which, for the purposes of this case, we will state in round figures of 2,000,000 feet. This lumber was to be provided by the plaintiff to be put upon vessels furnished by the defendant. The shipments were to be made from time to time, and each shipment was to be paid for within the specified time after receipt of the bill of lading, and the whole quantity of lumber contracted for was to be thus shipped within the time likewise specified. The price was in like manner predetermined. The defendant's proffer of a contract embodied among its other terms that of a delivery f.o.s. vessel at a designated port. In its acceptance, the plaintiff modified the terms of the proposed contract in this respect by making the place of delivery f.o.s. vessel, but accompanied it with this provision that the loading should be done by it through its employes and at a price named by it. In substantial effect the change made in the contract was one affecting only the price and making the delivery f.o.s. The plaintiff promptly proceeded to carry out its contract in accordance with its terms by loading the first vessel provided for the purpose by the defendant. The defendant refused to fully comply with its part in the contract by making, instead of a full, a partial, payment for the lumber shipped, seeking to excuse, or at least explain, its failure to fully perform by stating that there had not, at that time, been an opportunity to verify the bill of lading as to the quantity and quality of the shipment. A fairly substantial deduction was made from plaintiff's bill to protect the consignee from an insignificant shortage in quantity and quality of the lumber. The plaintiff refused to acquiesce in this deduction, protesting against it and insisting upon the compliance by the defendant with its contract. In the meantime, however, it had proceeded before this dispute had developed to load the second vessel. Intermediately the consignees had experienced a difficulty in securing vessels to carry the shipments, and anticipated further difficulties and consequent delays in the arrival of vessels in time to take the shipments called for by the contract. In further consequence, they opened negotiations with the plaintiff looking to a modification of the contract in this respect and tendering compensating concessions on their part. The plaintiff at once met these overtures with a statement of its attitude as one of insistence upon the contract as made being carried out, and its unwillingness to change or modify the contract as made in any respect.
Contemporaneously with these negotiations, the second vessel arrived at its port of destination, and its cargo of lumber was accepted by the defendant. What then came to pass is this: The defendant evidently assuming that the plaintiff would refuse to deliver...
To continue reading
Request your trial